Legal Studies Area of Study 2 – Unit 3
TEST 3 Total marks: 50 marks
Suggested writing time: 1 hour 25 minutes
Short answer and extended
response questions
Specific instructions to students
• Answer all questions in the spaces provided.
QUESTION 1 4 + 2 + 2 + 3 + 4 + 5 + 8 + 6 = 34 marks
Tobias purchased a brand new ‘Supergas’ heater from
Myer Melbourne. Two weeks later, he was sleeping
on the floor in front of the heater and it caught on
fire. Tobias was able to put the fire out quickly but it
ruined his television and rug. Further, Tobias suffered
third-degree burns to his leg and was hospitalised for
two weeks. During his hospital stay, Tobias watches
a news report and learns about two other individuals
who have also had their ‘Supergas’ heater catch on fire
and cause injuries. The reporter mentions that a class
action may begin.
a Explain to Tobias the difference between the
burden of proof and the standard of proof in
a civil matter. 4 marks
The burden of proof is the requirement that a plaintiff must
provide proof that a defendant is in the wrong (or liable) for
the damage that they have suffered. In this example, Tobias
would need to prove that either the manufacturer of the
heater, or Myer as the seller, were at fault.
The standard of proof, on the other hand, refers to
the level that a plaintiff must satisfy a court of their case.
In a civil case, the standard of proof is the ‘balance of
probabilities’ (i.e. which side of the facts is more probable).
In Tobias’ case, he must convince the court, using evidence,
that his version of the facts is most probably correct.
b Explain what a class action is to Tobias. 2 marks
When an individual is part of a wider group (of at least
seven individuals) that has suffered a similar injury or loss,
they can come together to bring a joint civil action, known
as a class action or representative proceeding. Generally,
one person (the lead plaintiff) makes the claim on behalf of
the class where the claim arises out of substantially similar
circumstances and raises similar issues. The lead plaintiff
must describe the class of people being represented. In this
matter, it is likely to be people who have suffered injury due
to the ‘Supergas’ heater malfunctioning.
10  A+ Legal Studies Exam VCE Units 3 & 4
c Does Tobias have to be part of the class action?
 2 marks
Generally, Tobias would be automatically included in the
class action if he meets the description of the class.
However, Tobias can choose to ‘opt-out’ of the proceedings
by writing to the court and informing it that he does not
wish to be part of the proceedings. This means he will not be
bound by the proceedings, but also that he will not receive
any benefit if the class action is successful.
d Briefly explain one advantage of a class action and
how it achieves the principle of increasing access to
the legal system? 3 marks
One advantage of a class action is that it shares the
costs of proceedings, thereby reducing the overall cost.
For example, if many people were injured by the ‘Supergas’
heater, they are able to instruct one lawyer or firm to
represent them all, which significantly decreases the cost.
By doing this, it ensures that individuals are able to access
the legal system where previously they might not have been
able due to the high costs for individual legal representation.
e Assume that Tobias decides that he does not want
to be part of the class action and he decides to go to
court alone. Discuss two factors that Tobias should
consider before initiating a civil claim. 4 marks
• The likelihood of success – this refers to the chance
that Tobias has in successfully pursuing his claim,
including considering whether there is enough
evidence to establish the claim (such as witnesses
or documentary evidence). Generally, the advice of a
solicitor will be sought to determine what chance Tobias
has of winning his case and what the expected outcome
will be. If the legal advice reveals problems in pursuing
the claim, Tobias might decide not to proceed.
• Cost of action – there are significant financial costs
involved in taking a matter to court, including the cost
of legal representation, court filing fees and costs for
pre-trial proceedings. Whilst it is possible Tobias may
receive some costs back if he is ultimately successful,
it is unlikely to be all costs expended.
Please see the Appendix for alternate solutions.
ISBN 9780170400244
f A friend tells Tobias that he should contact
Consumer Affairs Victoria (CAV) rather than
taking court action. What are the main roles of
CAV? Could Tobias use CAV in this matter?
 5 marks
Consumer Affairs Victoria (CAV) is a Victorian government
consumer affairs regulator and deals with consumer affairs
matters. The main roles of CAV include:
• Advising and educating consumers and businesses on
their rights and responsibilities and on changes to the law.
• Conciliating disputes between consumers and
traders (as well as some other types of disputes such
as between tenants and landlords).
• Ensuring compliance with Victorian consumer laws
and taking action to ensure traders comply with
consumer laws.
Tobias could make a complaint to CAV as the matter falls
within the CAVs jurisdiction (a dispute between a consumer
and a trader), it appears to possibly involve a breach of
consumer legislation (as the heater involves a consumer
safety/protection issue) and it is not yet before the courts
or the Victorian Civil and Administrative Tribunal (VCAT).
However, Tobias would need to take reasonable attempts to
resolve the dispute directly with the trader first (i.e. Myer
Melbourne) before approaching CAV. Generally, CAV would
then attempt to conciliate a dispute.
Using signposting
Make your language
HOT
TIP as clear as possible to
indicate to the examiner
where you are answering the question and
consequently earning the marks. In this
example, you are asked for two advantages and
two disadvantages. Be sure to clearly ‘signpost’
each advantage and disadvantage so it is clear
for your examiner. For example, ‘one advantage
is …’ and ‘a second advantage is …’.
g Explain two advantages and two disadvantages of
using CAV to resolve Tobias’ dispute. 8 marks
Possible advantages:
• Reduced time and cost involved – making a
complaint to CAV is free and does not require legal
representation, as compared with more formal matters
that would. Generally, using CAV will be far quicker than
ISBN 9780170400244
the pre-trial procedures involved with court action.
• The use of a third party – The CAV conciliator will generally
be knowledgeable and experienced concerning consumer
laws and, as a conciliator, can make suggestions to both
parties to assist them to resolve the dispute.
Possible weaknesses:
• The decision is not binding – Both parties must
reach agreement in order to resolve the dispute and,
if there is no voluntary agreement between the parties,
CAV cannot compel or force the trader to provide the
outcome desired by Tobias.
• One party may be stronger than the other party
and/or manipulate them. Myer Melbourne is a significant
corporate entity with funds at their disposal and
therefore has a stronger bargaining position than Tobias.
Please see the Appendix for further advice.
h Tobias is let out of hospital and has a bill for $5000 for
medical procedures. Incorporating this information,
explain the pre-trial procedure ‘discovery’ and
describe two of its purposes. 6 marks
The discovery procedure is a way where both parties are
able to gain further information from one another about
issues or evidence relating to the matter. Discovery of
documents involves each party disclosing key documents
relevant to the issues in dispute. In this matter, it is likely
that Tobias would need to disclose a copy of his hospital
bill to the defendant(s) as it is relevant to the damage he
has suffered, which would be an issue that may possibly
be disputed.
Possible purposes:
• To determine the strength and weakness of each
party’s case and the likelihood of success at trial. The
discovery process ensures both parties have access
to all documents, some of which support their case
and others which may not. Accordingly, each party has
a better idea of the case against them.
• To reduce the element of surprise at trial and the risk of
ambush. Without discovery, a party could bring forward
a document during the hearing and the other side may
not know about it and therefore be in a poor position
to respond.
Please see the Appendix for alternate solutions.
Test 3   11
 QUESTION 2 6 marks QUESTION 3 10 marks
Explain what a court hierarchy is and two of its ‘The Victorian Civil and Administrative Tribunal
purposes. As part of your response, refer specifically to (VCAT) and the courts operate in essentially the same
the benefits of a hierarchy for civil cases. way, except VCAT is cheaper.’
Victorian courts are arranged into a court hierarchy Evaluate this statement.
according to the importance and complexity of the cases Similarities:

they hear. At the top of the Victorian court hierarchy is • Both make use of various dispute resolution methods

the Supreme Court that deals with the most difficult and (such as mediation) and both will often refer a dispute

complex legal issues and the Magistrates’ Court is at the to those methods before making a final decision.

lower end and deals with simpler matters. • Both are able to make binding decisions.

Possible purposes: • Both charge fees to bring a case before them.

• Ensures a system of appeals – a hierarchy ensures Differences:

that if a party is not satisfied with a decision made • VCATs filing fees are significantly less than that of the

by a court they can appeal the matter to a higher courts. This is particularly so because many lists also

court. This is a protective mechanism to ensure a just require no legal representation.

outcome is reached because any errors or mistakes • VCAT cannot be utilised in any criminal matters,

can be corrected on appeal. For example, if an individual whereas the courts hear both civil and criminal matters.

in a civil case is unhappy with the outcome of their case • VCAT tends to settle more minor civil disputes as

that was heard in the County Court or by a single judge opposed to complex disputes involving large sums

of the Supreme Court (Trial Division), they can appeal of money.

on a point of law, a question of fact or on the amount • There is a more extensive appeals process for matters

of damages to the Supreme Court of Appeal. heard by the courts than VCAT.

• Administrative convenience – courts receive • For civil cases, a jury is not available at VCAT, whereas

thousands of cases per year and a court hierarchy a plaintiff could opt for a jury of six for a civil case in

enables those matters to be spread across the courts a court.

according to their seriousness and complexity. More • VCAT does not utilise pre-trial procedures and is not

complicated cases can be dealt with by experienced bound by strict rules of evidence and procedure. This

judges in higher courts and simpler cases can be dealt is unlike the courts, which require both.

with quickly and at less cost by courts lower in the Please see the Appendix for a full sample answer to this question.

hierarchy. For example, the Magistrates’ Court may

only hear civil matters below $100 000. If the matter
is less than $10 000 it will be referred to arbitration.
Please see the Appendix for alternate solutions.

12  A+ Legal Studies Exam VCE Units 3 & 4 ISBN 9780170400244