Legal Studies Unit 2 practice exam 2010 and suggested answers · PDF file · 2011-10-25Legal Studies Unit 2 practice exam 2010 and suggested answers ... The practice exam and suggested

LEGAL STUDIES UNIT 2

© VCTA Published October 2010 page 1

Legal Studies Unit 2 practice exam 2010 and suggested answers

Victoria Blakston

Carey Baptist Grammar School

The following VCE Legal Studies Unit 2 practice exam consists of three compulsory sections covering Areas of Study 1 and 2 in Unit 2. Students are to choose from the questions provided in each of the following sections:

• Section A: students answer the five questions provided

• Section B: students answer the one question provided

• Section C: students choose one of the two questions provided.

Additional space is provided at the end of the question-and-answer book.

The practice exam and suggested answers are based on the author's interpretation of the VCE Legal Studies Study Design.

Teachers are advised to preview all practice exam material before distributing it to students.




Practice written examination 2010

Reading time: 15 minutes Writing time: 90 minutes

QUESTION AND ANSWER BOOK

Structure of book

Sections Number of questions Number of questions to be answered

Number of marks

A

B

C

5

1

2

5

1

1

26

24

10

Total: 60 marks

Materials supplied • Question and answer book

• Additional space is available at the end of the book if you need extra paper to complete an answer. Clearly label all answers with the appropriate section and question number.

Instructions • Answer all questions in the spaces provided in this question and answer book.

• Write in black or blue pen only.

Students are NOT permitted to bring mobile phones and/or any other unauthorised electronic devices into the examination room.



Section A: Short-answer questions

Instructions for Section A Answer the following questions in the spaces provided.

This section is worth 26 marks.

Question 1

a. Identify the differences in civil and criminal law in relation to:

Standard of proof

Civil:

Criminal:

Burden of proof

Civil:

Criminal:

Jury

Civil:

Criminal:

2 + 2 + 2 = 6 marks

b. Define the term ‘tort’.

1 mark



c. Choose one of the following torts and describe the main elements of the tort.

i. defamation

ii. trespass

iii. nuisance

3 marks

Question 2

Define the term ‘contract’ and explain the main elements of a valid contract.

4 marks



Question 3

If a person wanted to claim that a contract they entered into was not valid, what would they have to prove to a court? Choose two factors that would make the contract invalid.

4 marks

Question 4

With reference to a case that raised a novel fact situation (test case), explain how the tort of negligence was established.

4 marks



Question 5

Discuss how the tort of negligence has evolved in Australia.

4 marks



Section B: Problem-solving question

Instructions for Section B This section relies on your problem-solving skills and their application to a scenario. Read the following scenario carefully and consider your answers.

Question 6

Michael and his two friends moved out of their parents’ home into a rental property in a suburb of Melbourne. As they had just moved in, they decided to have a party. The noise from the party was loud and continued until 5.00 am in the morning. They considered the party to be such a success that they decided to continue having parties each weekend for the next three months. Their three neighbours (on either side and one at the back) are upset at the level of noise being generated and say that they want to retain the quiet nature of the neighbourhood. Michael thinks that they old and out of touch and have forgotten how to have a good time.

a. Identify the most appropriate alternative to court action that should be used in the first instance to resolve this dispute. Explain your choice.

4 marks



b. Assuming your first alternative to court action was not effective, what alternative dispute resolution (ADR) method would you recommend as a second choice?

4 marks

c. What is required of the parties to a dispute in order for ADR to be successful?

4 marks



d. Prior to the neighbours taking legal action, they ask you, as a Legal Studies student, what difficulties they may experience in exercising their rights in court. Discuss two possible difficulties.

4 marks

e. The neighbours decide to proceed with the matter. Identify the relevant tort in this matter and outline one pre-trial process that would be used. Describe the purpose of the pre-trial process that you have chosen.



4 marks

f. Assume that this matter goes to court. Discuss the remedy that the neighbours are likely to seek.

4 marks



Section C: Extended-response questions

Instructions for Section C Answer one of the following questions. Each question is worth 10 marks, making a total of 10 marks for this section.

Choose an area of law that you have studied in class and answer one of the questions below.

• Environmental and neighbourhood relationships

• Families and the law, such as the law relating to marriage, divorce and domestic relationships

• Legal issues in technology, such as surrogacy, reproductive or medical technologies, euthanasia, computer fraud or the Internet

• Human rights such as the law relating to equal opportunity, immigration or Indigenous Australians

• Sports and the law

• Rights and responsibilities, such as the law relating to consumers, road users or tenancy

• Wills and inheritance

• Young people and the law.

Question 7

Discuss the purpose of laws governing this area of law? In your response, consider the original objectives of these laws and whether they have been achieved, and explain the conflicting attitudes that various groups in the community have towards these laws.

10 marks

OR

Question 8

Changes to the law are important so that the law evolves over time and remains relevant to the community it serves. In relation to the area of law that you have studied, discuss how particular laws that govern this area have evolved over time by discussing recent changes in these laws.

10 marks

Indicate whether you are answering either Question 7 or Question 8.







END OF QUESTION AND ANSWER BOOK



Extra space for responses Clearly number all responses in this space.





Suggested answers to Unit 2 practice exam 2010

Note: The points below do not represent the only possible answers. Students must not write in dot-point form in the examination, since that would incur a marking penalty. Students should consult their teacher if they have any questions about the following suggested answers.

Section A: Short-answer questions

Question 1

a. Identify the differences in civil and criminal law in relation to: (6 marks)

Civil Criminal Standard of proof Balance of probabilities Beyond reasonable doubt

Burden of proof Lies with the plaintiff Lies the prosecution

Jury Jury of six Jury of 12

1 mark awarded for each correct answer to a maximum of 6 marks.

b. Define the term ‘tort’. (1 mark) A tort is a civil wrong (a wrongful act) that causes injury (damage) to someone in some way and

for which an action for damages may be brought.

c. Choose one of the following torts and describe the main elements of the tort. i. defamation ii. trespass iii. nuisance (3 marks)

Students are expected to provide some detail in their answer in order to gain full marks.

Defamation: Written or spoken statements that damage a person’s good reputation. There are two types of defamation: libel and slander. Libel is generally in a published form, such as a print magazine or on the Internet, and is considered more damaging than slander. Slander is spoken statements and is considered less damaging than libel.

Trespass: There are three types: trespass to land, which is being on someone’s land without their permission or staying on it longer than is permitted; trespass to goods, which is intentional interference with another person’s property; and trespass to the person, which is a civil version of assault and also includes false imprisonment.

Nuisance: There are two types of nuisance: private and public. Private nuisance occurs when someone disrupts a person’s right to the enjoyment of their land. An example of private nuisance is noise. Public nuisance occurs when the public’s enjoyment of an event is disrupted by an individual or group of individuals. An example is appearing on centre court during a tennis match at the Australian Open.

Question 2

Define the term ‘contract’ and explain the main elements of a valid contract. (4 marks) Students are expected to provide some detail in their answer in order to gain full marks.

A contract is an agreement about the exchange of something of value between two or more parties that is legally binding (enforceable).

To be a legally binding, valid contract it must contain the following three elements:



• offer—where a person or organisation offers to sell a good or service to another person

• acceptance—the person answers the offer by agreeing to the offer or by making a counter-offer

• consideration—something of value is exchanged between the parties as payment for the good or service.

Question 3

If a person wanted to claim that a contract they entered into was not valid, what would they have to prove to a court? Choose two factors that would make the contract invalid. (4 marks) Students are expected to provide some detail in their answer in order to gain full marks.

There are a number of factors that make a contract invalid. Students could choose any two of the following factors.

• Incapacity: The party to the contract is a minor (under 18) or is not legally responsible to enter into a contract (other than for necessities), which includes conditions such as mental illness or impairment.

• Duress: The person was pressured to enter the contract by another person under fear or threat of harm to themselves or members of their family.

• Mistake: A genuine mistake was made as to the nature of the contract.

• Misrepresentation: The goods or services offered were not the ones that were received or did not perform as promised by the offeror.

• Illegal: The contract was illegal and is therefore unenforceable.

Question 4

With reference to a case that raised a novel fact situation (test case), explain how the tort of negligence was established. (4 marks) The cases students would refer to are Donoghue vs Stevenson (1932) or Grant vs Australian Knitting Mills (1936).

In each of the cases of Donoghue vs Stevenson (1932) and Grant vs Australian Knitting Mills (1936), the plaintiff consumed goods and suffered damage as a result of that consumption. As the law stood at the time, neither plaintiff had a contract with the manufacturer and could not take anyy action under the law of contract. As a result, each plaintiff took action on the grounds that they suffered damage because a manufacturer should make goods that are fit for the intended purpose. In both cases, this line of argument was successful and the plaintiffs were awarded damages. This created the ‘neighbour principle’ that states that your neighbour is someone who is likely to use your product and it should not cause harm or damage. Hence, the concept of a ‘duty of care’ to another in law was established.

Question 5

Discuss how the tort of negligence has evolved in Australia. (4 marks) The tort of negligence was established in Australia as a result of the decision in Grant vs Australian Knitting Mills. At this time, it related to manufactured goods, where the manufacturer had a duty of care to the user (not only the buyer) and this was breached. Over time, this tort has developed in common law to include the provision of professional advice, such as by bankers, accountants, lawyers and doctors, and has extended to local council authorities, as demonstrated by the decision in Shaddock vs Parramatta City Council. However, it has not removed the responsibility of a person to conduct their own due diligence on a matter, and where the advice is not impartial, such as from a real estate agent (who is employed by a vendor), it is the responsibility of the other party to ensure that claims made, such as potential for earnings, are not relied upon.



Section B: Problem-solving question

Question 6

a. Identify the most appropriate alternative to court action that should be used in the first instance to resolve this dispute. Explain your choice. (4 marks)

There are six accepted alternatives to court action. They are:

• abandonment

• self-help

• negotiation

• mediation

• conciliation

• arbitration.

Students could choose one of any of the above approaches, although self-help would be the most appropriate choice in the first instance.

The most practical alternative to court action in the first instance would be self-help by trying to reason with Michael or to negotiate with him. Since the parties to the dispute are neighbours and as they are likely to have some kind of ongoing relationship, it is in the interests of both parties to try and reach a mutually agreeable resolution or compromise and to try and keep the relationship on civil terms. In addition, as the parties have significant input into resolving the issue, a negotiated resolution is more likely to be effective.

b. Assuming your first alternative to court action was not effective, what alternative dispute resolution (ADR) method would you recommend as a second choice? (4 marks) A second-choice method would acknowledge that the relationship is important and aim to maintain it. Therefore, by using a service such as Dispute Settlement Centre of Victoria (DSCV), mediation, an ADR method, would be a good second alternative to court action as would conciliation. As a last resort, the parties could turn to arbitration to have a decision imposed on them.

c. What is required of the parties to a dispute in order for ADR to be successful? (4 marks) The parties need to be willing to come together and listen carefully to each other’s position on the issue. They are also required to, as far as possible, make a genuine effort to resolve the dispute and to do so as soon as possible. The presence of an independent third party, such as a mediator or a conciliator, will help the parties to consider each other’s point of view. The mediator or conciliator assists in clarifying the issues for each party, devoid of emotion, which may be contributing to the problem. Finally, the mediator or conciliator will help draw up an agreement that the parties reach. The process is voluntary and confidential. If the process is unsuccessful, anything said during the ADR process cannot be used in a court.

d. Prior to the neighbours taking legal action, they ask you, as a Legal Studies student, what difficulties they may experience in exercising their rights in court. Discuss two possible difficulties. (4 marks) Court proceedings can take a long time and the courts are increasingly referring matters to mediation at an early stage of litigation to encourage the settlement of disputes.

If the parties to a dispute do go to court, engaging legal representation can be financially expensive. Even in the Magistrates’ Court a barrister can cost up to $5000 per day. This does not include prior work undertaken by a solicitor, which is also costly.



Litigation is also stressful. Sometimes the parties to a dispute have to go back to court numerous times and this can create confusion and animosity between them.

In addition, the court will make a decision on the matter and the result will be legally binding. The result is imposed on the parties and they may not like the outcome; it is unlikely that it will suit either side 100%.

As a Legal Studies student, there are some significant difficulties in taking the matter to court, so legal action would have to be considered carefully.

e. The neighbours decide to press ahead. Identify the tort involved in this matter and outline one pre-trial process that would be used. Describe the purpose of the pre-trial process that you have chosen. (4 marks) The relevant tort is private nuisance, which occurs when someone interferes with another person’s right to the enjoyment of their land.

Sample answer:

One pre-trial procedure is the issuing of a writ requiring the party against whom it is issued to appear and show cause, that is, it is a legal document that summonses the other party to court at a specified date and time. A writ includes the names and addresses of the plaintiff and the defendant, the information about the place and mode of trial (judge alone or judge and jury), and the name and address of the plaintiff’s solicitor. The purpose of a writ is to summon the other party to appear in court in order to resolve a dispute.

Other types of pre-trail procedures that students could refer to are:

• notice of appearance

• pleadings

• discovery process

• directions hearing.

f. Assume that this matter went to court. Discuss the remedy that the neighbours are likely to seek. (4 marks) There are five main civil remedies:

• damages

• injunction

• order for specific performance

• restitution

• rescission.

In this matter it is likely that the neighbours would seek an injunction for the abatement of the noise. No damage has occurred, except for the inconvenience to the neighbours. Restitution and rescission are both inappropriate. An order for specific performance also does not apply because there is no specific action to be performed relating to an existing contract (as no contract exists). An injunction is a court order that prevents an action from occurring. This is the most appropriate remedy for this dispute.



Section C: Extended-response questions

In this section students should clearly identify the option that they are choosing.

Teachers should also assess whether the particular command or task word has been used correctly. This is an important skill throughout Legal Studies Units 1–4. In this practice exam, the following task words have been used:

• identify

• define

• describe

• explain

• discuss.

Further information about task words can be found in the Compak article ‘Interpreting words in examination questions’. This article was published in the September (Issue 7) edition and can found in the Compak archive at http://www.vcta.asn.au/compak/archives. Click on the ‘Legal Studies’ tab.

Documents

Legal Studies Unit 2 practice exam 2010 and suggested answers · PDF file · 2011-10-25Legal Studies Unit 2 practice exam 2010 and suggested answers ... The practice exam and suggested