FOUNDATIONS OF PRIVATE LAW

 A. The material facts of the case

Case history

In this case, it can be seen that an accident has happened in Government Forensic and Analytical Laboratories in 2000. In this case, the defendant is Trevor Fox and the plaintiff is Scott Dale.  Trevor Fax has supported police to investigate into the matter. In the current case, there are three main suspects. All of them have gone to hide in Mr. Fox's and Mr. Dale's house respectively. After that, Mr. Dale has been shot with a gun.

This case has been dealt with by Justice Evans. The court has given the verdict that Mr. Fox has accidentally fired the gun. In this case, Mr. Dale has claimed compensation for his injuries against Mr. Fox. Mr. Dale has filed a trespassing case against Mr. Fox for trespassing. Due to giving evidence against the allegations, Mr. Fox has called Mr. Butler and Mr. Toner. Mandy Howlett has been considered as Mandy Tonner for the sake of the case. In this case, justice has relied on the shreds of evidence shown by Mr. Dale. According to the justice, the pieces of evidence shown by Mr. Dale have been consistent throughout the case hearings.

Mr. Dale has not helped the justice as a witness. Instead of answering the questions, he has avoided them. He has falsely denied his involvement with the case. These shortcomings can be used as the loopholes of the case. The defendant Mr. Fox can apply against the plaintiff using these drawbacks[1]. Again the justice has found the evidence of Mr. Fox has fired the gun with a conscious mind. The plaintiff has been given this evidence just as a piece of oral evidence. The justice has also questioned the investigative police officer associated with the case. They also have said that the behaviour of Mr. Dale has been negative. This also can be used against the plaintiff by the court.

 The court has given Mr. Dale the instructions to meet with the police. However, he has not responded to that as well. Another witness of the case, Mr. McIntosh has been alleged with the planning to kill Mr. Fox. Under the Firearms Act of 1996, they can be charged as they have carried firearms and explosives in government property[2]. Along with that, Mr. Fox has strong evidence against them and they can use the following three things that come under Australian privacy law. 

A plaintiff needs three things to fight a case against opposition under private law. These are considered to be:

1) Action that can cause opposition against the Australian government.

2)  The plaintiff needs to apply in a court having a proper jurisdiction system[3].

3) The plaintiff needs to go further after sensing his or her rights.

In the 78th section of the Australian constitution, the country can proceed to a case after identifying the limitation of the judicial power[4]. The Commonwealth parliament has the authority to file cases against state bodies. In this current case scenario, many verdicts have been given. Crimes like trespassing, explosive misuse, property damaging has been considered under this case.

B. Relevant legal issues related to the case

Primary issue

In the mentioned case of Dale v fox in the Tasmanian Supreme court the main issues that has been raised is illegal trespassing to the government territories which is the Government Analytical and Forensic laboratory of Tasmania. In relation to the trespassing charge, Fox is also convicted with the charge of exploding a bomb in the government laboratory. Therefore, the main legal issue of the particular case has been vested upon the charges of the codes against “Offences against property Act” and “Explosive Regulation Act of 2012” of Tasmanian Supreme Court[5].

Sub issue

Trevor Fox has been believed to assist police in the interrogation process. When the possible plaintiffs Mr. Fox and a gang of other charged plaintiffs have tried to confront Mr. Fox, he has accidentally fired from his gun which has resulted in consequent wound in his face which almost blinded him. Based on the provisions of the battery of tort of negligence of the Tasmanian legislature the charges upon Mr. Fox have been established.  Therefore, a complex situation has been raised where the plaintiff and defendant both are convicted. Applying the provisions of the “Civil Liability Act of 2002 [Subsection (3)]”, Mr. Dale also has claimed damage concession from Mr. Fox[6]. The case has become more complex who has provided evidence on behalf of Mr. Fox. Aaron Butler and Joseph Tonner, the two witnesses of Mr. Fox have nullified the charges of Mr. Dale. Therefore, it has been very complex for Evans J. to evaluate the case from multiple points of view. However, there has been an incidence of armor negligence. Mr. Fox was supposed to be more careful with handling guns which he was not. Therefore, Evans J. has applied the provisions of “Negligence and Foresee ability tort” on Mr. Fox[7]. Due to this action Mr. Fox has also been convicted of legal charges. However, Evans J. has applied some specific charges on Mr. Dale based on the provisions of Tasmanian legislation. Mr. Dale is convicted under the charges of “Police Offences Act 1935”, as he has been charged for exploding a bomb in the government laboratory[8]. The charges of “Criminal Law (Detention and Interrogation) Act of 1995 [Subsection (2)]” which deals with criminal activities in government premises and also delivers proper actions for the judge have been applied here[9].  The Subsection (4) of the similar act has also been applied on Mr. Dale as he has terminated the rule of detention. The major charge that Evans J. has applied on Mr. Fox comes under the provisions of “Explosive Act of 2012”, specifically the Subsection (3A). Based on the key regulations mentioned here, the whole legal proceeding of the Dale v Fox case has been performed in the Tasmanian Supreme Court[10]. The case has been quite complex due to the changing opinions of the witnesses. Also the involvement of the intruders have been modified the viewpoint of the case for Evans J.

C. Explanation of the process of reasoning

Description of the procedure of reasoning

It can be possible to explain that the procedure of reasoning needs to be explained in order to understand the importance of the onus of proof. In this regard, it has been found that the procedure of reasoning in the given case helps to review the evidence from the plaintiff as well as the defendant. In order to understand the process of reasoning of the case, it is needed to understand the causes of the judgment by evaluating the overall process of the reasoning. As Mr. Fox has refrained from firing the gun, it means, he has not fired the gun in a conscious manner. Moreover, the judgment has been given that Mr. has not been liable in the battery. It is because the contents of the voluntariness have not been presented there. As for this reason, the process of reasoning has considered some aspects like onus of proof, as well as the voluntary nature of the actions of all liable people. Moreover, the conclusion can be drawn on the basis of the evidence. As for this reason, all the gathered pieces of evidence have been reviewed in an effective note for understanding the process of the reasoning.

 

1. Evaluating the importance of determining the onus of proof

Burden of proof is actually the legal duty which encompasses separate ideas in order to establish truth of the facts in any trial prior to tribunals. In the criminal trials, prosecution bears the entire burden of proof. This is known as the cardinal principle of justice in the Australia. From the case study, it can be revealed that plaintiff Mr. Dale has suspected Mr Fox in an investigation of bombing in a government laboratory where both the defendant and plaintiff have been charged. It could be identified that the situation in the present case study of Scott Raymond Dale v Trevor Stuart Fox is otherwise on the civil trial for trespassing to the person. It is to be highlighted from the judgment results that, the tort of battery is not actually committed as the defendant’s act is the everyday act of contact. The bomb blast from the battery is not actually intentional and thus could be categorized under Tort of Negligence. It is known that as per Offences Act 1953 (SA) s 17 (a), police is capable of prosecuting the trespasser facing imprisonment and penalty of up to 6 months and $2500 fine respectively[11]. Thus trespassing is both private and criminal offence although for the present case study, the trespassing law cannot be applied.

The burden of proof mainly belongs to the party making claims and the party against whom claim is being made do not belong to any obligation for proving innocence[12]. It is crucial to remember that onus of proof not only refers to amount of evidences but also the quality of each evidence. From the above discussion, it could be assessed that there was no elements of voluntariness and intention in the act and hence, it cannot be claimed that the present act is related to trespassing.

 

2. Understanding the holding of Onus of proof

In this context, it is possible to explain that a question has been raised regarding this case study. The question is whether the onus of proof lies somewhere on the issues such as negligence or intent. In this context, according to Evans J., it is needed to understand the onus of proof lies on negligence or intent. In this case, it has been identified that Mr. Fox has not fired the gun in a conscious note. In addition to that, Onus of Proof of Intentional Act needs to be considered by understanding the Civil Liability Act 2002. On the basis of the act, Division 3 - Causation has stated that the plaintiff is liable to bear the onus of proof in order to decide the responsibility of breach of any particular duty[13]. In the given case study, the plaintiff is liable for holding the onus of proof[14]. On the other hand, the Criminal Code Act 1924 clearly states in Section 381 that the onus of proving may be established upon the gathered evidence for the prosecution[15]. On the basis of the judgment of Evans J., it has been found that the plaintiff of the given case retains the proof of onus. In this regard, it is needed to decide whether the contract caused the injury has been negligent or intentional. In this context, a case example can be aligned with the given case study. In the case of Huntsman Chemical Company Australia Pty Limited v Narellan Pools Pty Limited [2011] FCAFC 7 that the plaintiff of this case has retained the liability of the onus of proving[16]. It is required to understand the breach of duty is where negligent or intentional.

3. Assessing the effectiveness of the conclusion supported by legal authority

In the present case, first and foremost element of liability is related to the issue whether Mr Fox consciously fired the gun. In this point it is possible to state that the present issue is really linked to voluntary act, consciousness or trespassing. Evans J has opined that, academic and judicial opinion at present days favors the views which is for the plaintiff to prove and aver that the defendant’s act was neither negligent nor intentional. It could be stated that Kirby P’s decision making is highly detailed review with respect to the law in the present area[17]. On the action for trespassing, plaintiff retains onus of improving that the injury was either negligent or intentional. The above discussion thus indicates that Mr Evans is not actually correct in the conclusion. The counsel for defendant submits that plaintiff bears onus of establishing the act of negligence of intent. The present discussion thus deals with supports from legal authorities and assesses the non-effectiveness of Evans J’s conclusion.

 

 

References

alrc.gov.au (2014), Consent, Available At: https://www.alrc.gov.au/publication/serious-invasions-of-privacy-in-the-digital-era-alrc-report-123/11-defences-and-exemptions/consent-5/ [Accessed on 17^th January 2020]

alrc.gov.au (2015), A common law principle, Available At: https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-interim-report-127/11-burden-of-proof/a-common-law-principle-7/ [Accessed on 17^th January 2020]

classic.austlii.edu.au (2020), Criminal code Act 1924, Available at: http://classic.austlii.edu.au/au/legis/tas/consol_act/cca1924115/ [Accessed on 14th January, 2020]

Ginzberg, E., 2017. The institutions of private law and their social functions. Abingdon: Routledge.

Hobartlegal.org.au (2020). Offences against property act. Available at: https://www.hobartlegal.org.au/handbook/crime-and-punishment/offences-under-the-police-offences-act-and-the-criminal-code/offences-against-property/

Howells, G. and Ramsay, I. eds., 2018. Handbook of research on international consumer law. Cheltenham: Edward Elgar Publishing.

jade.io (2020), Huntsman Chemical Company Australia Pty Limited v Narellan Pools Pty Limited [2011] FCAFC 7, Available at: https://jade.io/article/208746?at.hl=onus+of+proof [Accessed on 18th January, 2020]

Kysar, D.A., 2018. The public life of private law: Tort law as a risk regulation mechanism. European Journal of Risk Regulation, 9(1), pp.48-65.

legislation.tas.gov.au (2020), Civil Liability Act 2002, Available at: https://www.legislation.tas.gov.au/view/whole/html/inforce/2015-10-13/act-2002-054 [Accessed on 18th January, 2020]

legislation.tas.gov.au (2020), Criminal code Act 1924, Available at: https://www.legislation.tas.gov.au/view/whole/html/inforce/current/act-1924-069 [Accessed on 14th January, 2020]

legislation.tas.gov.au (2020), Police Offences Act 1935 Available At: https://www.legislation.tas.gov.au/view/html/inforce/current/act-1935-044 [Accessed on 17^th January 2020]

Legislations.tas.gov.au (2020). Civil Liability Act 2002. Available at: https://www.legislation.tas.gov.au/view/whole/html/inforce/2015-10-13/act-2002-054 [Accessed on: 5th February 2020]

Legislations.tas.gov.au (2020). Criminal Law (Detention and Interrogation) Act 1995. Available at: https://www.legislation.tas.gov.au/view/html/inforce/current/act-1995-072 [Accessed on: 5th February 2020]

Legislations.tas.gov.au (2020). Police offences Act 1935. Available at: https://www.legislation.tas.gov.au/view/whole/html/inforce/2008-04-28/act-1935-044 [Accessed on: 2nd Fenruary 2020]

Lunney, M., 2020. Common Law Codification: Lessons and Warnings from Twenty-First Century Australia. Journal of European Tort Law, 10(3), pp.183-206.

Supremecourt.tas.gov.au (2020). Negligence and Foreseeability tort. Available at: https://www.supremecourt.tas.gov.au/publications/speeches-articles/negligence-foreseeability-doctrine-law-public-policy/ [Accessed on: 31^st January 2020]

Supremecourt.tas.gov.au (2020). Release of historic Tasmanian cases. Available at: https://www.supremecourt.tas.gov.au/publications/speeches-articles/release-austlii-digitised-copies-historic-tasmanian-cases/ [Accessed on: 2^nd Fenruary 2020]

Utas.edu.au (2020). Foundations of Private Law. Available at: https://www.utas.edu.au/courses/cale/units/law252-foundations-of-private-law [Accessed on: 1st February 2020]

 

 

 

 

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[6] Hobartlegal.org.au (2020). Offences against property act. Available at: https://www.hobartlegal.org.au/handbook/crime-and-punishment/offences-under-the-police-offences-act-and-the-criminal-code/offences-against-property/

 

[7] Supremecourt.tas.gov.au (2020). Negligence and Foreseeability tort. Available at: https://www.supremecourt.tas.gov.au/publications/speeches-articles/negligence-foreseeability-doctrine-law-public-policy/ [Accessed on: 31^st January 2020]

 

[8] Legislations.tas.gov.au (2020). Police offences Act 1935. Available at: https://www.legislation.tas.gov.au/view/whole/html/inforce/2008-04-28/act-1935-044 [Accessed on: 2nd Fenruary 2020]

 

[9] Legislations.tas.gov.au (2020). Civil Liability Act 2002. Available at: https://www.legislation.tas.gov.au/view/whole/html/inforce/2015-10-13/act-2002-054 [Accessed on: 5th February 2020]

 

[10] Supremecourt.tas.gov.au (2020). Release of historic Tasmanian cases. Available at: https://www.supremecourt.tas.gov.au/publications/speeches-articles/release-austlii-digitised-copies-historic-tasmanian-cases/ [Accessed on: 2^nd Fenruary 2020]

 

[15] legislation.tas.gov.au (2020), Criminal code Act 1924, Available at: https://www.legislation.tas.gov.au/view/whole/html/inforce/current/act-1924-069 [Accessed on 14th January, 2020]

 

[16] jade.io (2020), Huntsman Chemical Company Australia Pty Limited v Narellan Pools Pty Limited [2011] FCAFC 7, Available at: https://jade.io/article/208746?at.hl=onus+of+proof [Accessed on 18th January, 2020]