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QUESTIION
exam for civil procedures
MLL391 Civil Procedure and
Alternative Dispute Resolution
Trimester 2 2020
Final Assessment Task – Open-book Take Home Online Exam
DUE DATE AND TIME: The start date and time will be as per the University T2 2020
Exam timetable.
PERCENTAGE OF FINAL GRADE: 60%
WOR
WORD COUNT:
HURDLE DETAILS:
2,000 words. This is a strict word limit. A +10% variance above
this limit is not allowed.
Not Applicable
Description/Requirements
The final assessment will be an Open-book Take Home Online Exam.
The exam will be released on the unit CloudDeakin site in the Content area, under Assessment
Resources at the date/time scheduled in the University Exam T2 2020 timetable.
You must complete the task individually.
The exam is similar to a normal two-hour open-book exam. It comprises five (5) questions.
Each question may have parts. You must complete all parts of all questions.
The exam will take you approximately 2 hours of working time, although you have 48 hours
to complete and submit it. For example, if the exam is released on Monday at 9:00am AEST,
you must submit your response by 9:00am on Wednesday AEST.
The 48-Hour deadline for submission of the Open-book Online Exam is an absolute deadline.
No submission can be made after this deadline. Non-submission will result in a mark of zero.
The 48-hour deadline is well beyond the actual time required to complete the Open-book
Take Home Online Exam. If you are well-prepared, the exam should take about the same time
to complete as a two-hour problem-style exam.
The reason for the additional time in the 48-hour deadline is to allow you to complete the
task at a time that suits your personal circumstances.
You may apply for Special Consideration if you think that your circumstances require
reasonable adjustments, however it is not anticipated there will be any adjustments to the
48-Hour deadline for students seeking Special Consideration or for students on Access plans
or both. Nevertheless, you may apply for Special Consideration if you think that your
circumstances require reasonable adjustments:
https://www.deakin.edu.au/students/studying/assessment-and-results/specialconsideration
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Further, if you have more than one Online Exam within the 48-Hour period, this will not be
grounds for any extra time or dispensation given the length of time allowed.
To complete the exam
On the day and time of the exam, download the exam from the CloudDeakin site using the
following pathway:
o Content (from the navbar)
o Assessment Resources
IMPORTANT Examination Information
T2 2020 MLL391 Exam
Download and save the exam on your computer.
Write your response in a separate single Microsoft Word Document and save using the
following file name: student id, unit code and the unit name, for example
123456789_MLL391_CivilProcedureandADR. doc (or .docx). Do not include a copy of the
whole question in your response document, but do make sure that you clearly identify the
question that you are attempting (i.e. have a heading Question One, followed by your
response, and so on).
Save the document with your responses regularly while working.
There is a maximum word limit for your exam response of 2,000 words—any words beyond
that will not be assessed. There is no 10% leeway. All elements of the response, including
headings and references are included in the word count.
You must complete the task INDIVIDUALLY.
Be careful to respond explicitly to the questions asked. Do not copy large amounts of
information from study guides, textbooks, journals, online sources or your notes, as this is
unlikely to address the questions. If you use direct quotations from external sources, ensure
you cite them correctly and put them in quotation marks. As a general rule of thumb, taking
five words in a row should be in ‘quote marks’.
It is important you respond to the questions using your own words as your submitted exam
response will be checked by electronic or other means for the purposes of detecting
collusion and/or plagiarism.
Structure and formatting
Use a similar type of structuring and formatting that you would for a normal two-hour problem-style
open-book exam.
That is, you are not required to comply with the Australian Guide to Legal Citation (4th ed.).
Do not use footnotes. Instead, use in-text references to cases and legislation. (For example:
‘It is generally not reasonable to require a defendant to avoid a risk of harm that should have
been obvious to the plaintiff: Romeo.’) References are included in the 2,000 word limit.
You must use full sentences – note form is not acceptable.
As indicated by the referencing example given above, it is not necessary to cite the full names
of cases, provided that you give enough of the case name to enable the marker to identify it,
eg ‘Romeo’ is acceptable as a shorthand for the case of ‘Romeo v Conservation Commission of
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the Northern Territory (1998) 192 CLR 431’. Make sure that you use a distinctive part of the
name (‘Romeo‘ as opposed to ‘Conservation Commission‘).
It is not necessary to cite the relevant legislation in full, provided that you give sufficient detail
to enable the marker to identify it, eg ‘Civil Procedure Act’ is acceptable for the ‘Civil Procedure
Act 2010 (Vic)’.
Abbreviations are acceptable provided you define them the first time if they would not be
apparent. There is no need to define an abbreviation that has been used in the materials or
that would be apparent (eg ‘PTD’ for pre-trial discovery; ‘JC’ for joinder of claims; ‘LPP’ for
Legal Professional Privilege). Parties’ names can be abbreviated (e.g., Paul is ‘P’).
It is suggested that you italicize or underline statutory provisions and case names to make it
easier for the marker to see that you have provided appropriate citations in support of any
legal principles that you apply.
We recommend that you use a size 12 font (Calibri Body or Times New Roman) with a line
spacing of 1.5.
NB: Suggested form of wording for Law exams with problem-based questions or you could
include this in a separate ‘exam tips’ document: In this unit, we focus on your ability to apply
the law to the facts. Accordingly most marks will be awarded for your identification of issues,
identification of the material facts that are relevant to that issue, and the application and
analysis of the law as it applies to those facts. Generalised statements of legal principle that
are not sufficiently adapted to the facts will attract limited or no marks.
Topics
The Open-book Online Exam could assess all topics covered in the unit, with the exception of:
Representative Proceedings; and
Class actions
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Submission
You must submit your exam response as a single Word document into the relevant Dropbox
on the unit’s CloudDeakin site.
You will have 48 hours from the time of the release of the exam to upload your response into
the relevant Dropbox. The Dropbox will close at this time and it will not be possible to submit
after this time.
If you experience ongoing technical difficulties during the exam period, contact the IT
Service Desk online or via phone – please ensure you record your ticket number the IT
Service Desk will provide as evidence of technical difficulties:
o Internal phones: 888
o Off-campus: 1800 463 888
o International: +61 3 5227 8888
If you have completed your exam but experience difficulty uploading your response to the
Dropbox on the unit site, you should email your response to the unit chair at
[email protected], before the deadline, as evidence of timely submission, as well as
contacting the IT Service Desk. Please use ‘exam submission’ as the email subject. Your unit
chair will liaise with you for subsequent submission to the DropBox.
Preparation
A reliable internet connection is vital for the exam. You will also need to have the appropriate
computer hardware for downloading the exam, completing your response and uploading your
response to the CloudDeakin Dropbox on the day of the exam.
If you do not have access to a computer or the Internet, subject to COVID-19 restrictions,
there may be limited availability to sit the exam on campus.
If you wish to sit the exam on campus you must formally apply for this in accordance with the
specified timelines, to the University using the webform. A link to the webform will be made
available on the CloudDeakin site.
The best way to prepare for the Open-book Take Home Online Exam is to:
Know the unit materials thoroughly.
Complete the revision as recommended by the unit chair.
Complete the advance reading as specified in the Topics section above.
Before the exam, think about the content covered in the unit. Think about the type of
questions which could be asked and prepare notes related to those questions.
Note that you are unlikely to have access to e-textbooks provided through the Deakin Library
during your exam due to licensing constraints, therefore, you should prepare your own study
notes in advance.
You are not expected to conduct legal research. You should base your answers on the unit
materials and readings. We recommend that you do not use resources that you find online as
they might not represent Australian (or Victorian) law.
Make sure when preparing your study notes that you do not collaborate closely with another
student, as this might give rise to a perception that you have colluded in your exam responses.
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Working and Submission details
You must keep a backup copy of the exam response you submit until results are released.
You can (but do not need to) make multiple submissions within the 48 hour period. All
submissions will be retained. The submission that will be marked will be the last submission
made by the submission due date/time.
When you submit your response in the Dropbox on the unit site, you will receive an email to
your Deakin email address confirming that it has been submitted. You should check that you
can see your submission in the Submissions view of the Assessment task Dropbox folder after
upload, and check for, and keep, the email receipt for the submission.
Late submission is not possible. If you fail to upload your response by the deadline, your
response cannot be marked. No late submissions will be accepted.
Once the exam is released the unit team is not permitted to answer any further questions
about it. If you feel there are errors or other issues on the exam, you should briefly explain in
your response any such issue and how you have dealt with it in your response (for example,
any assumptions you have made about the information provided).
Discussion boards will be closed 24 hours prior to the exam.
You should not contact the unit team about the exam during or after the exam unless you
need to email your submission to the unit chair due to a technical issue uploading to
CloudDeakin.
Do not contact the unit team regarding any extension for this task. If you feel there are
circumstances beyond your control that have affected your ability to complete this exam,
then you must apply for Special Consideration via the faculty portal; information is available
from this site: https://www.deakin.edu.au/students/studying/assessment-andresults/
special-consideration. Documentary evidence must be provided to support your
application.
Academic Integrity
All Deakin students are expected to act with academic integrity in accordance with
the student academic integrity policy and procedure.
This means you must submit your own work without input or assistance from anybody else.
Your submission will be checked by electronic or other means for the purposes of detecting
collusion and/or plagiarism.
For more information about academic misconduct, special consideration, extensions, and
assessment feedback, please refer to the document Your rights and responsibilities as a
student in this Unit in the first folder next to the Unit Guide of the Resources area in the
CloudDeakin unit site.
For law students: You should bear in mind that, when you submit your response, you are
required to declare that it is your own work and that you have not engaged in any collusion,
plagiarism, or any other kind of activity that is contrary to academic integrity. For example,
discussing the content of this task with any other student (eg, via FaceBook, or any other
means) is an instance of collusion and contrary to policies on academic integrity; copying
material from the web may be an instance of plagiarism and also contrary to these policies. If
any allegations arise on such issues, the unit chair is required to make a report to the faculty
academic progress committee; such a report may well constitute a matter that appears on
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your academic record. In the case of law students, this may well be a matter that you must
disclose when you seek admission to practise. You should also be mindful that legal
practitioners face obligations about ‘passive’ receipt of information (eg, mistaken release of
information during disclosure, etc), so this type of conduct may well breach academic
integrity.
Assessment Feedback
Results will be released as per the T2 University calendar.
Written feedback is not provided on exams.
Students can make an online appointment to get feedback on their exam following the final
results release for T2 2020.
| Subject | Law and governance | Pages | 10 | Style | APA |
|---|
Answer
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Civil Procedure and Alternative Dispute Resolution Examination
Question 1
To serve justice to all parties involved, courts have to get all relevant information. As such, the discovery of all relevant documents is key to ensuring that the parties to a case can inspect documents that will be used: Davies v Eli Lilly & Co. Discovery ensures that all parties can disclose to one another all relevant documents: Hodgson v Amcor. In the present case, the following procedures are available to Shady Neglect &Co to obtain the findings of that investigation before proceedings are formally commenced.
Application for Discovery
Shady Neglect &Co may make an application for discovery under Rule 29.01 of Supreme Court (General Civil Procedure) Rules (SCR) 2015 to get documents which under possession, power, or custody of Pacific Cruises and Pacific Holidays. The grounds for this application would be the plaintiff relies on such documents in her claim.
Interlocutory Application
The plaintiff’s lawyers may also make an interlocutory application under Rule 4.02 of SCR in order for the defendants to give discovery of documents required, which are the findings of the internal investigations conducted. An interlocutory application is made by one party on grounds such as leave to amend a pleading, leave to add a party, and to get an order that the other party gives discovery of documents or answers to interrogatories.
Particular Discovery
Shady Neglect &Co may apply for an order for a particular discovery in accordance with Rule 20.08 of SCR. This application will seek to show that the defense is in possession of the internal investigation report, which is relevant material to the case. Rule 29.07(1) holds that the Court may, on its volition, order that any of the parties to a case makes a discovery of documents to the other. However, one of the factors to consider include the probability of prejudice and if pleadings cannot be completed unless discovery has been made: Computershare Ltd v Perpetual Registrars Ltd.
Discovery of Documents from A Non-Party
Under Rule 32.7, the plaintiff’s lawyers may apply to the Court for the discovery of documents from non-party. If the investigation report is in the hands of a third party to the case, Shady Neglect & Co may apply for to be given documents for discovery. For instance, if the defendants allege that the investigation report is in the hands of a third party, Shady Neglect & Co may apply that the stated third party gives discovery of documents.
The Likely Successful Procedure
The procedure which will be successful from these is that in Rule 29.01 because the plaintiff will argue that such an investigation report will be relied upon in supporting the claim and pleadings made. Also, Shady Neglect &Co will convince the Court that discovering the report of the investigation would not cause prejudice to the other parties. Also, the lawyers for the plaintiff would win using this procedure because they will demonstrate how their pleadings cannot be completed if such a discovery has not been made.
Question 2
Appearance
The lawyers for Pacific Holidays will first have to file an appearance to stop the plaintiff from entering a default judgment in accordance with Rule 8.06.
Striking Out Pleadings
The next step will be applying for striking out of pleadings under Rule 32.01. In this Rule, the Court is allowed to stay the proceeding generally if the claim is scandalous, frivolous, and vexatious: Gunns Ltd. v Marr. Rule 23.02 allows the Court to end the claim prematurely if the claim has no foundation, and it is so defective such that it cannot be cured: Perpetual trustees Australia Ltd & Others v One Steel Trading Pty Ltd. The argument that the defense lawyer would rely on is that since they have a watertight exclusion clause protecting them, the current claim is otherwise an abuse of the court process, and thus, the pleadings should be struck out.
Summary Judgement
Also, section 3 of the Vexatious Proceedings Act 2014 allows the lawyers for the defense to apply for striking our pleadings if they are commenced without any reasonable grounds. Moreover, the lawyers may apply for summary judgment under section 62 of CPA, where they will claim that the plaintiff’s claim has no real prospect of success. However, this section applied only in cases where the statement of claim is worded badly and ambiguously worded and embarrassing to both the parties and the Court. Also, the Court may decide not to strike out the pleading and order the amendment of the pleadings.
Whether the Steps Will Be Successful
These steps will not be successful in bringing the action to an immediate conclusion because the exclusion clause may be deemed by the Court to be contrary to the public interest. Also, in deciding to strike out a claim, a court has to conduct an objective and subjective analysis of the case. An objective analysis includes looking at the merits of the claim. However, a subjective consideration would involve determining whether the plaintiff’s claim was motivated by other reasons other than the reasons for bringing a valid claim: Pridmore v Magenta Nominees Pty Lt.
Question 3
Leave to Amend Pleadings
With respect to the matters of changes in the claim, the counsel for the plaintiff should seek to leave to amend their pleadings under Rule 36.01. The arguments in support of this action would be that it would be prejudicial not to allow such an application and that the application is made in good faith: AON Risk Services v ANU. Rule 36.04 allows parties to amend any pleading served by the said party once before the close of pleadings. Also, the party may, with the leave of the Court and upon agreement with the other parties in the case, amend pleadings. However, the Court can, upon application, either disallow the amendment or allow it either wholly or in part. By arguing that the amendment is important for justice to be served and that it would not cause prejudice to an opposing party, the plaintiff’s lawyer will be granted leave.
Leave to Remove A Party
The other action that counsel for the plaintiff should take in respect of whether the law applies to Pacific Cruises is seeking leave to remove the party in accordance with Rule 9.06. This Rule provides that at any stage of a proceeding, the Court may order the removal of any person who is not proper or necessary party. Also, Rule 9.11 asserts that when the plaintiff removes/adds/substitutes a party, such substitution takes effect from the date the order is made. Also, there are four scenarios where amendment due to a change of party may occur. One of these is when there is a clerical error, misdescription, or typo clerical error: Rule 36.01. Also, a mistake as to the name of a particular identified person may warrant an amendment: Rule 36.01(1). Moreover, an amendment may be allowed in a scenario where there was a mistake in a party’s correct legal description: Rule 36.01(4). Finally, a mistake in the legal description of a proper party may lead to the grant of leave to amend: Bridge Shipping Pty Ltd v Grand Shipping SA. The Court will disallow this amendment because there was no mistake in the choice of Pacific Cruises as a defendant.
Actions of Counsel for The Defendants
Counsel for both defendants will object to an application for amendment and base their objection on reasons such as the lack of convincing justification for the late application. Also, they would say that the new issue being introduced would give rise to a new case. Moreover, the opposing party may argue that there is an absence of an explanation for the late application. The defiance can oppose the application for amendment by asserting that they are not to blame for the amendment and that the application should have been made before bringing the matter in Court. It would also be valid for the defense to argue that the amendment would place a strain on them, and a change of pleading would bring a new case in reply.
Question 4
General Rule on Costs
Section 23 of the Supreme Court Act 1985 (Vic) and Rule 63.02 of the SCR argue that the costs of litigation are at the discretion of the Court. Usually, the Court will order the unsuccessful party to pay the successful party on a standard costs basis and for compensatory purposes only. There is no exhaustive list of scenarios on how a court may exercise its discretion to award costs: Symphony Group v Hodgson. Although Rule 63 holds that the basis of costs is on a standard or indemnity basis, the general rule is that a standard basis would normally be used: Rule 63.31. An indemnity basis for determining costs is used where an unusual amount has been unreasonably incurred: Ugly Tribe Co v Sikola, GT Corporation Pty Ltd v Amare Safety Pty Ltd (No. 3).
Application of Rule
In the present case, the Court should rule that the successful defendant pays the successful plaintiff and the successful defendant the costs of litigation. In this case, Pacific Cruises, based on the Sanderson Order, should bear the costs of the litigation. However, the complication is that Pacific Cruises has been placed in voluntary liquidation, and there is no effective insurance to cover the costs if the Court were to rule that it pays the costs of the litigation. Also, Pacific Holidays had made an offer of compromise after it was served with the writ. Rule 26.02 argues that a party may serve the other party an offer of comprise which may be accepted or rejected. If no time is specified for the expiry of the offer, a person to whom the offer is made may accept the offer before a verdict or judgment is made.
How the Court Should Rule
Based on the factors discussed in the last paragraph, the Court should rule that the costs of litigation will be borne by the plaintiff’s lawyers and paid to Pacific Holidays. The reasoning for such a position is that the party demonstrated a willingness to pay for a compromise to the tune of $835,000 plus costs, which the plaintiff rejected. Rule 26.8 requires that when the plaintiff gets less than what was offered, the plaintiff will pay the defendant’s costs on a standard basis from the official date the formal offer of compromise was made until the date of the verdict. The making of an offer of comprise placed the plaintiff at massive risk, and the rejection of such an offer makes it desirable for the Court to order the plaintiff to pay costs to Pacific Holidays.
Question 5
Where a successful party does not reveal documents to the Court, the loser may apply for the Court to reopen the case if there is evidence that a different result would have been reached if the new evidence had been available at the earlier hearing: Commonwealth Bank v Quade. Also, a case may be reopened when the material interests of justice require it, where new evidence would probably produce a different result, and where the new evidence could not have been discovered before the trial: Watson v Metropolitan (Perth) Passenger Transport Trust. However, in Spotlight Pty Ltd v NCON Australia Ltd, it was determined that there must be fresh evidence unavailable or not reasonably discovered before for a case to be reopened after judgment. In the current case, Shady Neglect & Co can apply for the reopening of the case. However, for them to be successful, they must demonstrate that the new evidence was not available to them at the trial, and if it was available, the outcome of the case would have been different. Nevertheless, Shady Neglect & Co will not be successful in their endeavors to reopen the case because they already had time to call for discovery of the contents of internal investigations, but they did not do so.
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References
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