COMPAK | LEGAL STUDIES UNIT 3

LEGAL STUDIES UNIT 3

Unit 3, Outcome 2 assessment

task B: structured questions
NICK FORD | CANTERBURY GIRLS’ SECONDARY COLLEGE

This assessment task for Outcome 2 in VCE Legal Studies Unit 3 focuses
on the principles of justice, the purposes of pre-trial procedures and
remedies, reasons for a court hierarchy, responsibilities of personnel, the
ability of the civil justice system to achieve the principles of justice, and
reforms to the civil justice system. This task (2B) comprises five questions
that cover the second half of the key knowledge outlined in Area of Study
2 of Unit 3, as listed below. Suggested answers are provided.
This is the second assessment task for Outcome 2 in Unit 3 published in
Compak. The first task (2A) was published in the March edition and can
be downloaded from the VCTA website.

ASSESSMENT TASK DETAILS

Name of task
Structured questions

Unit/area of study
Unit 3: Rights and Justice
Area of Study 2: ‘The Victorian civil justice system’

Outcome 2
‘Analyse the factors to consider when initiating a civil claim, discuss the institutions and methods
used to resolve civil disputes and evaluate the ability of the civil justice system to achieve the
principles of justice.’
Source: VCE Legal Studies Study Design (2018–2022), VCAA, page 19

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Key knowledge and key skills

This assessment task addresses the following (selected) key knowledge and key skills outlined
in Area of Study 2 in Unit 3.
Note: Some key knowledge points and key skills are not covered in this task. In addition, where
part of a key knowledge point or key skill is covered, the applicable words are highlighted in
bold.

Key knowledge
Key concepts
● the principles of justice: fairness, equality and access

Resolving a civil dispute

● the purposes of civil pre-trial procedures
● the reasons for a Victorian court hierarchy in determining civil cases, including
administrative convenience and appeals
● the responsibilities of key personnel in a civil trial, including the judge, jury, the
parties and legal practitioners
● judicial powers of case management, including the power to order mediation and
give directions
● the purposes of remedies
● damages and injunctions, and their specific purposes

Reforms
● factors that affect the ability of the civil justice system to achieve the principles of
justice, including in relation to costs, time and accessibility
● recent and recommended reforms to enhance the ability of the civil justice system to
achieve the principles of justice

Key skills
● define and use legal terminology
● discuss, interpret and analyse legal principles and information
● explain the purposes of pre-trial procedures, using examples
● explain the reasons for the Victorian court hierarchy in determining civil cases
● discuss the responsibilities of key personnel in a civil trial
● discuss the ability of remedies to achieve their purposes
● discuss recent reforms and recommended reforms to the civil justice system
● evaluate the ability of the civil justice system to achieve the principles of justice
● synthesise and apply legal principles and information to actual and/or hypothetical
scenarios.
Source: VCE Legal Studies Study Design (2018–2022), VCAA, page 19

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INSTRUCTIONS AND CONDITIONS

Answer all questions in this question and answer book. The marks for each question are
indicated after each question. Additional space is available following the questions if you need
extra paper to complete an answer. If you use this additional space clearly label each answer
with the appropriate question number.

Conditions: Closed book

Time allowed: 50 minutes (plus 5 minutes reading time)

Marks allocated: 30 marks

QUESTIONS

Question 1 (4 marks)
Outline one civil pre-trial procedure and explain how it achieves one of its purposes.

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Question 2 (5 marks)
a. Explain one reason to justify having a court hierarchy to determine civil cases.
3 marks

b. With reference to your answer to part a., explain how having a court hierarchy to
determine civil cases promotes one of the principles of justice. 2 marks

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Question 3 (10 marks)

Girl band #Bethma supported pop superstar Myriam and the Latte’s on their ‘Never on Time’
world tour. At their London concert #Bethma member Beth slipped on some coffee that was spilt
on the floor by Myriam. She injured her back and was unable to perform for two weeks. She is
suing Myriam for negligence, claiming $120 000 for lost wages and medical expenses.
County Court Judge Khudeira is presiding over the case of Beth and Myriam. She believes that
Beth is entitled to compensation for loss of income and medical expenses, and thinks the case
could be resolved without going to trial.

a. Assuming this case proceeds to a trial without a jury, outline one responsibility of Judge
Khudeira during the trial. 2 marks

b. Discuss the ability of damages in this case to achieve one of their purposes. 3 marks

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c. Describe the case management approach used in civil cases prior to a trial.

2 marks

d. Analyse how the use of case management powers could help in achieving one of the
principles of justice in this case. 3 marks

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Question 4 (4 marks)
Discuss the extent to which the use of the jury promotes fairness in the civil justice system.

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Question 5 (7 marks)
Explain how costs OR time can limit the Victorian civil justice system’s ability to achieve the
principles of justice, and discuss the extent to which one recent or recommended reform could
assist in overcoming these limitations.

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Extra space for responses

Clearly number all responses in this space.

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Suggested answers
Question 1 (4 marks)
Outline one civil pre-trial procedure and explain how it achieves one of its purposes.
Note: This is one of a number of possible answers to this question.
One pre-trial procedure is pleadings. Pleadings begin with a plaintiff initiating a statement of
claim, which may be included in the writ, detailing the nature of the claim and the remedy
sought. The defendant then issues a statement of defence, in which they respond to the
plaintiff’s allegations, either admitting or denying them. The plaintiff might then issue a reply to
the defence, and finally the defence might put forward a counter-claim, in which they can claim
the plaintiff is partly or wholly responsible for the actions that occurred.
One purpose of pleadings is to enable the parties to present their respective cases and to help
them understand the nature of the claim(s), by identifying the issues that are in dispute and the
remedy sought, which may encourage the parties to negotiate an out-of-court settlement. If the
parties are able to settle at this point, the time and costs associated with a trial will be saved.
Another purpose:
One purpose of pleadings is to narrow the issues in a civil case through the parties exchanging
a series of documents about the claims and defences in dispute, including the statement of
claim, statement of defence and counter claims.
Alternative answer:
One civil pre-trial procedure is discovery. Discovery refers to a process whereby the parties in a
civil case exchange relevant documents containing information and evidence about the case.
This includes interrogatories, which are written questions from each party requesting more
information relating to presented documentation, and a notice of discovery, which is a demand
for relevant documents, such as a medical report.
The purpose of discovery is to develop a clear understanding of the opposing party’s case and
to ensure that both parties are aware of all the details and evidence relating to the dispute. This
provides the parties with an indication of the relative strengths and/or weaknesses of their case,
which can lead them to withdrawing their claim or settling out of court.
Other pre-trial procedures: directions hearings, mediation.
Marking guide:
2 marks for identifying and outlining the named procedure
2 marks for explaining how it achieves one purpose

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Question 2 (5 marks)
a. Explain one reason to justify having a court hierarchy to determine civil cases.
3 marks
Note: This is one of a number of possible answers to this question.
A reason for having a court hierarchy is to allow for administrative convenience. This
means courts can customise their procedures to enable the most efficient resolution of
disputes. For example, having the courts ranked in order of highest to lowest according to
the seriousness and complexity of the cases heard enables the Magistrates’ Court to
develop processes to deal with relatively minor civil matters in an efficient and
cost-effective manner, while serious matters are heard by the higher courts.
Alternative answer (1):
A reason for having a court hierarchy is that it enables the existence of an appeals
system. If a party to a civil case believes that the decision was wrong and should be
changed or that the remedy granted was too high or unfair, they have the opportunity to
have that decision reviewed by a higher court within the same court hierarchy. Appeals
rely on courts being ranked from lowest to highest according to the seriousness and
complexity of cases each can hear.
Alternative answer (2):
A reason for having a court hierarchy is specialisation. Each court in a court hierarchy
specialises in hearing and determining particular types of cases and so can develop
expertise in these areas. For example, the Magistrates’ Court specialises in hearing civil
disputes involving amounts up to $100 000. This allows magistrates to become experts in
understanding these types of disputes and the laws (and remedies) that apply to them.
Alternative answer (3):
The operation of the doctrine of precedent is a central reason for having a court hierarchy.
The doctrine of precedent states that lower courts in the same hierarchy are obliged to
follow the legal principles established by higher courts when cases have similar facts.
The part of the judge’s decision that forms the law is the ratio decidendi. This part of a
judge’s decision becomes binding on lower courts in future similar cases. The doctrine of
precedent could not operate without courts being ranked from lowest to highest according
to the seriousness and complexity of cases each can hear.
Marking guide:
1 mark for identifying the reason
2 marks for outlining the reason
b. With reference to your answer to part a., explain how having a court hierarchy to
determine civil cases promotes one of the principles of justice. 2 marks
Note: This is one of a number of possible answers to this question.
Administrative convenience promotes access by allowing the courts to develop
customised procedures so that cases can be resolved in a timely manner, which helps to
minimise the costs incurred by the parties and the court system and keep court delays to
a minimum. Administrative convenience also allows court personnel to develop
specialised knowledge so that they can process cases in a timely manner, which
can also help to reduce court delays and costs.

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Alternative answer (1):

The system of appeals relies on the existence of a court hierarchy. Allowing a case to be
reviewed when a litigant believes the first decision was wrong and should be changed
(providing the grounds for appeal are satisfied) helps to ensure that trials are fair and
litigants are treated impartially. Therefore, the appeals system promotes fairness in the
civil justice system.
OR
The system of appeals relies on the existence of a court hierarchy. Allowing a case to be
reviewed when a litigant believes the first decision was wrong and should be changed
(providing the grounds for appeal are satisfied) helps to ensure that litigants are treated
equally under the law. Therefore, the appeals system promotes equality in the civil justice
system.
Alternative answer (2):
A court’s position in the court hierarchy determines the types of cases it hears. This
allows the County and Supreme Courts to deal with the most serious cases and the
Magistrates’ Court to deal with minor matters in local areas in both suburban and regional
areas. Specialisation promotes access to the legal system as most cases are dealt with
by the Magistrates’ Court and tribunals, and the cost of settling disputes is much lower
than in the higher courts.
OR
Specialisation promotes consistency in the interpretation and application of laws and
hence fairness in the administration of justice in civil cases as litigants are treated
similarly in cases with similar fact situations.
Alternative answer (3):
Under the doctrine of precedent, the legal principles established by higher courts are
binding on lower courts. Binding precedents allow the law to be applied consistently in
similar cases and this promotes fairness in the civil justice system. Binding precedents
also promote certainty and predictability in the way the law is applied, which leads to
fairness in decision-making. The operation of the doctrine of precedent is a constraint on
judicial decision-making and therefore promotes the impartial treatment of litigants, which
leads to fairness in civil trials.
OR
Under the doctrine of precedent, the legal principles established by higher courts are
binding on lower courts. Binding precedents allow the law to be applied consistently in
similar cases, which helps to ensure that people are treated equally under the law. The
operation of the doctrine of precedent is a constraint on judicial decision-making and
therefore promotes the impartial treatment of litigants, which promotes the principle of
equality where people are treated similarly in cases with similar fact situations.
Marking guide:
1 mark for identifying a relevant principle correctly
1 mark for linking it to the reason for having a court hierarchy

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Question 3 (10 marks)

Girl band #Bethma supported pop superstar Myriam and the Latte’s on their ‘Never on
Time’ world tour. At their London concert #Bethma member Beth slipped on some coffee
that was spilt on the floor by Myriam. She injured her back and was unable to perform for
two weeks. She is suing Myriam for negligence, claiming $120 000 for lost wages and
medical expenses.
County Court Judge Khudeira is presiding over the case of Beth and Myriam. She
believes that Beth is entitled to compensation for loss of income and medical expenses,
and thinks the case could be resolved without going to trial.

a. Assuming this case proceeds to a trial without a jury, outline one responsibility of
Judge Khudeira during the trial. 2 marks
Note: This is one of a number of possible answers to this question.
One of the responsibilities of a judge in a civil trial by judge alone is to decide the facts of
the case in order to reach a verdict. Judge Khudeira must listen to the evidence and the
arguments presented by both parties, apply the relevant law to the case and then make a
decision about fault and damages.
Alternative answer:
One of the responsibilities of Judge Khudeira in this judge-alone civil trial is to ensure that
the rules of evidence and court procedure are followed and that the parties, Beth and
Myriam, have an equal opportunity to present their respective cases in accordance with
these rules and in a manner that is fair to both parties.
Marking guide:
1 mark for outlining one responsibility
1 mark for linking the responsibility to the scenario
b. Discuss the ability of damages in this case to achieve one of their purposes.

3 marks
Note: This is one of a number of possible answers to this question.
The main purpose of damages is to restore the plaintiff, as far as possible, to their original
position prior to the civil breach, by providing an amount of money to compensate for any
loss, injury or damage.
In this case, while the awarding of specific damages could effectively compensate Beth
for her losses because they can be precisely calculated, such as lost earnings and
medical expenses, it is more difficult to compensate her for the pain and suffering she has
already suffered and might incur in the future. In other words, it is possible to restore Beth
to her original position prior to the breach of her rights in relation to specific damages, but
general damages will be less effective in achieving their purpose.
It is plausible that Beth has suffered long-term back issues that will restrict her ability to
perform in the future and limit her enjoyment of certain activities, and therefore impact
negatively on her personal life. The extent of this loss of enjoyment of life cannot be
easily assessed, and therefore it is difficult to determine the appropriate amount of
general damages that would compensate for this loss. This limits the ability of damages
to achieve their purpose in this case. However, awarding general damages for pain and
suffering can provide some form of compensation. For example, general damages should
enable Beth to hire support to help her complete the tasks she can no longer undertake.

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Marking guide:
1 mark for identifying one of the purposes of damages
1 mark for stating that specific damages should fully achieve this purpose and why
1 mark for stating why the achievement of the purpose of general damages has
limitations
c. Describe the case management approach used in civil cases prior to a trial.

2 marks
Judicial case management is a system whereby judges are appointed to supervise the
progression of a case from the initiation of pre-trial procedures to the determination at the
trial stage. Under powers outlined in the Civil Procedure Act 2010, judges can make
orders or give directions to the parties, such as fixing a timetable according to which the
parties must take certain steps, limit the number of witnesses that may be called to give
evidence, or order mediation.
Marking guide:
1 mark for providing a general outline of the power
1 mark for specifying that the power comprises making orders or giving directions, such
as ordering mediation
d. Analyse how the use of case management powers could help in achieving one of
the principles of justice in this case. 3 marks
In a civil case a judge is allocated to a case to manage and hear a specific matter from
the first directions to final determination at trial, if the case proceeds to that stage. The
main purpose of case management is to resolve civil disputes according to the law as
efficiently, quickly and inexpensively as possible, and to ensure that tactical delays do not
occur. However, the judge must balance this with the need for disputes to be resolved
justly. The parties to a case are expected to assist in achieving this purpose by identifying
the issues in dispute and dealing with them efficiently. Case management helps to
achieve the principle of access, as the powers conferred on judges to manage civil cases
are designed to ensure that delays in the resolution of cases are minimised and that
costs are proportionate to the matters in dispute.
Note: Students could argue that case management powers promote the principle of
fairness because unless delays in the resolution of cases are minimised, justice might not
be achieved.
Reference: Civil trial process, Fact sheet 7, County Court of Victoria,
https://www.countycourt.vic.gov.au/files/documents/2018-08/factsheet-7-civil-trial-process
es.pdf
Marking guide:
1 mark for outlining the purpose of case management
2 marks for the analysis of how the use of case management powers helps to achieve
one relevant principle of justice

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Question 4 (4 marks)
Discuss the extent to which the use of the jury promotes fairness in the civil justice
system.
The random selection process in civil jury trials is designed to achieve the impartiality of jurors,
that is, to minimise jury bias. Victorian civil jury trials usually have six jurors. During the process
of jury selection each party can challenge up to three prospective jurors. This helps to minimise
the possibility of jurors having biases or preconceived ideas that will adversely affect their ability
to judge the evidence presented. Impartiality is central to a fair trial and helps to ensure the
fairness of a verdict. However, making sure all jurors are free of bias or prejudices is difficult to
achieve, particularly with the influence of the modern media, and a more realistic goal might be
impanelling a jury with the least amount of bias.
The use of juries in civil trials also promotes fairness because justice is administered by ordinary
citizens and in line with community standards rather than relying on the unrepresentative views
of a single judge. However, certain categories of people are excused or disqualified from serving
on juries, including some professional groups, which means that juries are not a true
cross-section of society in terms of gender, ethnicity, age, occupation and socioeconomic status.
In other words, even though juries are randomly selected, which promotes fairness, they are not
sufficiently representative of the entire community and therefore of community standards.
Marking guide:
2 marks for a discussion of the selection process and how it promotes/limits impartiality and
hence fairness
2 marks for a discussion of representativeness and how it promotes/limits the achievement of
fairness

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Question 5 (7 marks)
Explain how costs OR time can limit the Victorian civil justice system’s ability to achieve
the principles of justice, and discuss the extent to which one recent or recommended
reform could assist in overcoming these limitations.
Note: Each of the following answers is one of a number of possible answers to this question.

Costs
Initiating civil court action is highly expensive due to wide-ranging fees such as filing fees,
hearing fees, jury trial fees and the cost of legal representation. Advice sought from a solicitor
costs between $200 to $600 an hour, while using a barrister to represent a plaintiff in court costs
between $3000 and $8000 a day. If a trial runs for a number of days the fees become
excessively high. Also, commencing an action in the County Court involves court fees, such as
commencement fees, hearing fees, administrative charges and jury trial hearing fees. For
example, it can cost $700 to lodge a writ in the County Court, hearing fees are around $500 to
$1000 a day, jury fees are $800 to $1100 a day, and in the case of an appeal, application fees of
nearly $4000 are payable to the Supreme Court. In its 2014 report on access to justice, the
Productivity Commission stated that the average plaintiff incurred costs nearing $60 000.
Equality before the law is a recognised principle of Victoria’s justice system, but the prohibitively
high cost of justice means that a party who is unable to afford legal representation or the other
costs involved in undertaking a civil action, may be placed at a significant disadvantage and not
be treated as equally. For example, equality cannot be achieved when parties represent
themselves and are pitted against experienced legal representatives with extensive knowledge
of the law, the rules of evidence and court procedure. In addition, according to the 2014
Productivity Commission report on access to justice, only 8% of households are likely to meet
the income and assets tests for legal aid, leaving the majority of households ineligible.
High costs also limit people’s access to the law as those who cannot afford high court and legal
fees are likely to be discouraged from initiating court action. Furthermore, a party might be
forced to withdraw their case if they exhaust their available funds, particularly if the other party
appeals, adding further to the overall costs of litigation.
It is also unfair if the high costs of legal representation favour one party over another because of
their capacity to pay for high-quality legal representation. Some parties may be forced to use
less experienced legal representatives or be forced to represent themselves. This could give the
opposing party an unfair advantage.
One reform that addressed the costs of the civil justice system is the use of Technology
Assisted Review (TAR) techniques (predictive coding) in the Supreme Court. TAR is a process
of streamlining the document review process in discovery in civil cases by using computer
technology to increase efficiency and effectiveness. Coding is applied to similar documents in
the process. This introduction of the use of TAR in civil cases followed the decision of
McConnell Dowell Constructors Pty Ltd v. Santam Ltd, & Ors (2016), which allowed for the
Supreme Court to implement predictive coding in the discovery process.
The use of TAR promotes fairness and access in the civil justice system as it helps to keep
costs down, and ensures efficient and accurate discovery of documents, as the technology is
highly accurate and precise. It is an efficient, reliable and cost- and time-effective way of
reviewing large document sets. However, the technology may not be accessible to everyone,
nor does it address cost issues in relation to filing fees and jury costs.
Reference: Technology assisted review plays key role in litigation,
https://www.supremecourt.vic.gov.au/news/technology-assisted-review-plays-key-role-in-litigatio
n

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Time
In its 2014 report on access to justice, the Productivity Commission stated that cases in the
lower courts were finalised within six months, whereas one-third of cases in the higher courts
exceeded 12 months to finalise.
Court and tribunal delays limit the ability of the civil justice system to achieve the principles of
justice. In relation to fairness, court delays adversely affect the quality of evidence over time,
thus reducing the possibility of a fair hearing.
The principle of access is compromised by delays, as litigants might withdraw their claim when
delays are extensive, due to emotional stress or because financial resources have been
exhausted. Vulnerable litigants might also be inclined to withdraw their claim due to delays,
which undermines the principle of equality.
The landmark case McCabe v. British American Tobacco Australian Service Ltd (BAT) (2002)
provides an example of high costs and time issues related to civil actions. Extensive delays and
high costs were associated with this case due to the defendant systematically destroying
documents that were relevant to the claims of the plaintiff.
One reform that has been introduced to address court delays is changes in the High Court
appeal process. A panel of justices will determine whether an oral hearing is necessary for
special-leave applicants, in relation to the commencement of an appeal. If no oral hearing is
necessary, the case will be heard on the basis of written submissions.
This reform promotes greater access to the legal system by ensuring a faster and more efficient
way of hearing appeals. It also promotes fairness, as appeals that do not have a real prospect
of success will not be reviewed.
However, this reform does not address all issues relating to time and delays in the civil justice
system, as it does not apply to all court appeals, nor does it address delays in pre-trial
procedures, thus hindering the achievement of the principles of fairness and access.
Other possible reforms:
● Greater use of alternative dispute resolution processes to address time or cost
issues, as they lower costs and lead to faster resolution of cases than court action.
● Extension of legal aid to cater for the ‘missing middle’—people who cannot afford
lawyers, but who do not qualify for legal aid.
● Improve the delivery of legal assistance services and improve the dissemination of
legal information to assist people to resolve disputes without using lawyers and
courts.
● Increase the use of technology in courts.
References:
Access to justice arrangements: Productivity Commission Inquiry report—overview, no. 72,
September 2014,
https://www.pc.gov.au/inquiries/completed/access-justice/report/access-justice-overview.pdf
‘Defeated by high legal costs: the terrible injustice most of us could face’, The Sydney Morning
Herald, 30 August 2017,
https://www.smh.com.au/opinion/defeated-by-high-legal-costs-the-terrible-injustice-most-of-us-c
ould-face-20170829-gy68pr.html
Marking guide (global):
1–4 marks for explaining how costs limit the ability of the Victorian justice system to achieve the
principles of justice
1–3 marks for discussing the extent to which one recent/recommended reform could assist in
overcoming the limitations to achieving the principles of justice

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Teacher notes
This School-assessed Coursework task for Outcome 2 in VCE Legal Studies Unit 3 is worth 30
marks out of the 50 marks available for Outcome 2. When combined with an assessment task
on the key knowledge not covered in this assessment task, the total contribution to
School-assessed Coursework for Outcome 2 in Unit 3 will be 50%. A task covering this key
knowledge and key skills can be found on the VCTA website (March issue). Titled ‘Unit 3,
Outcome 2 assessment task A: structured questions’, it is marked out of 25. As intended by the
author, teachers will need to adjust each student’s mark to a mark out of 20 (multiply by 0.8) if
used in conjunction with assessment task B.

Authentication advice
'Where commercially produced tasks are being used for School-based Assessment, the
school should ensure the tasks meet the requirements of the study design and that they have
been sufficiently modified to enable student work to be authenticated.’
—VCE and VCAL Administrative Handbook 2019, VCAA, 2019, page 74

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Disclaimer: This resource has been written by the author (Nick Ford) for use with students of VCE Legal
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