Civil Procedure Assignment: Problem Solutions and Analysis

This assignment solution addresses several problems related to civil procedure. It begins by analyzing the concept of 'throwing the baby out with the bathwater' in the context of alternative dispute resolution (ADR), discussing the implications of mandatory ADR and the differences between 'protective' and 'tactical' adversarialism. The solution then examines a tenancy agreement dispute, advising on court jurisdiction and potential legal actions. Finally, it explores a medical negligence case, analyzing the doctor's duty of care and the patient's rights to compensation. The document includes relevant case laws and provides a comprehensive understanding of civil procedure concepts.

Running head: CIVIL PROCEDURE
CIVIL PROCEDURE
Name of the Student
Name of the University
Author Note

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Problem 2
a)
Throwing the baby out with the bathwater is considered to involve the litigation process.
According to the author, it has been stated that the negative comments regarding the workings of
any adversarial system are considered to have resonated from the judiciary along with the
government agencies and lawyers or other stakeholders. In response to such there have been
various increasing emphasis upon that of the non-adversarial approaches, which would be used
in order to provide justice, and it would be through the alternative dispute resolution system.
There have been proponents for these new approaches for these legal disputes and such are
considered to enhance justice in several areas in order to reduce the negative factors, which are
the costs, time investment, stress, and disempowerment that has been experienced through the
litigation process. Therefore, this particular phrase is considered to imply counterproductive
measures for the ADR which are closely assumed through the judicial procedures.
b)
Alternative Dispute Resolution is considered to be the procedure which helps in the
settling of the disputes without any kind of litigation and such includes the process of arbitration,
mediation along with negotiation as these procedures are usually considered to be less costly and
along with such more expeditious. An appropriate Dispute Resolution is considered to be
necessary for the dispute resolution as such would help in providing the best alternative approach
to the case.

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c)
The fundamental principle is considered be that the court would be controlling the
conference and therefore, such avoids the tactical adversarialism. This might be considered to
hinder the process regarding the identification and the gathering of the appropriate evidence.
However, in spite of such if, the party is considered to wish to provide with any additional
evidence then the court would have to permit it in order to accord with the several requirements
for natural justice. These are considered to justify the protective adversarialism. On the other
hand, the lawyers are considered to be worried about the problems regarding the pleadings which
is considered to be a part of the traditional practice and they are considered to plead in such a
manner which would leave the opponent guess and such are done through the tactical advantage.
In spite of not being able, to plead the case properly the lawyer is not considered to argue the
matter as such would be the natural justice and the court would have to order them in order to
amend the pleadings which would help in making their case clear. Therefore, it can be stated that
the tactical advantage would help in making a good lawyer as such would provide different ways
in order to plead a particular case whereas, the protective adversarialism would let the parties
provide with additional evidences.
d)
There needs to be a manner in which a subject is taught and such needs to be consistent
with the several ideas and insights which are developed within some kind of orthodox-rights
based approach. These help in developing the scope for legal education.

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Problem 7
Issue
Whether the client can take any action in court and if so, which court an action can be
instigated in.
Rule
If the tenants are considered to breach the conditions of the tenancy agreement through
non payment of rent for more than 14 days then there would be a breach to the tenancy
agreement and for such a specific notice needs to be served for which they would be given 7
days notice period to pay the rent or there would be a notice to remedy such breach. Such matters
would be heard in the Tribunal courts.
Application
In this particular scenario, it can be understood that Sally and Suzie had signed a retail
shop tenancy agreement in order to rent a shop space in May 2017. They had not paid rent since
February 2018 and along with such, did not move into the shopfront. Therefore, the landlord of
that agreement can give a notice regarding seven days time period to pay the rent. If such would
not be paid then an action can be instigated in the Tribunal court.
Conclusion
Therefore, an action can be instigated by the client in the Tribunal Courts for non-
payment of rent.

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Problem 8
Issue
Whether the High Court would be able to hear the complaint made by George and if not
then which Court would entertain the complaint made by George.
Rule
The subject matter regarding the cases that are heard by the High Court of Australia are
considered to traverse the whole range of the Australian law. It includes cases relating to
arbitration, contracts, insurance, taxation law, copyright law, courts-martial, criminal law and
along with such procedure, personal injury claims among others. It can be un derstood from the
case of Peterswald v Bartley [1904] HCA 21, (1904) 1 CLR 497.
The High Court of Australia is considered to have original as well as appellate
jurisdiction where the power and the authority of the court relates to the reviewing of the
decisions which have been made by the lower courts and such are also inclusive of the State
Supreme Courts along with the Federal Court of Australia. It can be understood from the case of
Baxter v Commissioners of Taxation (NSW) [1907] HCA 76, (1907) 4 CLR 1087. The original
jurisdiction is considered to refer to the cases that would come directly to the High Court without
any kind of prior judicial decision. The matters regarding the enforcement of Fundamental rights
or matters relating to the admirality, will or marriage, divorce, contempt of courts and company
laws are considered to be heard. The High Court also has the power of constitutional review. It
can be understood from the case of R v Commonwealth Court of Conciliation and Arbitration;
Ex parte BHP [1909] HCA 20, (1909) 8 CLR 419.

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Application
In this scenario, it can be understood that George did not like the government which was
out to take his property therefore, he had received a certain kind of notice regarding his property.
The compensation for such property was 1.1 million Australian dollars and George said such was
unconstitutional for the government in order to take the property and thus, asks the proceedings
to be carried out in the High Court. As per the rule mentioned above, it can be understood that
High Court would only be able to review the decisions, which have been made by the lower
courts, and therefore, the proceedings cannot take place in the High Court immediately.
However, the claims or the complaint made by George can be heard in the lower courts
immediately and if the decision is not in his favor then such can be up for appeal.
Conclusion
Therefore, George can provide a complaint in the Lower courts as the matter would be
heard there first and the proceedings could start immediately.
Problem 9
Part a)
Issue
The issue to be discussed in the present scenario is whether there were any causes of legal
action that can be taken against Doctor O’ Neil and whether there are any preliminary matters
that needs to be resolved before filing for a claim.

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Rule
In the broadest sense it can be understood that medical negligence is considered to be
when a medical professional or any medical institute breaches the legal duty of care that is
considered to be owed to an individual or the patient. It can be understood from the case of
Whitehouse v Jordan [1981] 1 ALL ER 2671. The medical negligence comes under the tort law
and can be considered to be anything which results in harm or injury to an individual. It can be
observed from the case of Bolam v Friern Barnet HMC [1957] 2 ALL ER 1182.
Through the case of Rogers v Whitaker - [1992] HCA 583 it can be observed that a doctor
had a certain kind of duty towards the patient in order to warn the patient about the material risk
associated with the proposed treatment. The trial court had overruled the perception that a doctor
cannot be found negligent in giving a warning to the patient if such doctor had acted under the
purview of common practice. In spite of informing the doctor about the concern regarding her
good eye to not be harmed the doctor did not inform the plaintiff about the potential risks and
therefore the trial court had awarded the damages.
Application
It can be understood that the doctor had acted negligently in this present scenario as the
doctor did not inform the patient about the risks associated with the surgery and its side effects
which would be cause an impact to the health of the patient along with the degradation of the
nose and losing of all the olfactory senses. Therefore, as mentioned in the above rule it can be
understood that the doctor had a duty to take care of the patient and to inform her about the
potential risks that would be associated with the surgery and due to the breach of such duty the
1 Whitehouse v Jordan [1981] 1 ALL ER 267.
2 Bolam v Friern Barnet HMC [1957] 2 ALL ER 118.
3 Rogers v Whitaker - [1992] HCA 58.

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patient had suffered an injury and therefore was considered to be liable to be compensated for the
damages.
The plaintiff has to bring a claim against the defendant for negligence and has to prove
that there had been a certain kind of duty towards the plaintiff and such duty had been breached
which caused an injury to the plaintiff and therefore the plaintiff was liable for compensation due
to such injury. Before, filing a claim the plaintiff has another alternative solution she could
resolve the case through mediation or negotiation and if such did not get resolved then she could
take the claim to the court or file an action in the court.
Conclusion
Therefore, it can be understood from the above discussion that the plaintiff can file an
action against the doctor who had operated on her nose. She can resolve the claim through
mediation or negotiation and of such does not get resolved then the plain tiff can file a claim in
the court.

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Bibliography
Case laws
Bolam v Friern Barnet HMC [1957] 2 ALL ER 118.
Rogers v Whitaker - [1992] HCA 58.
Whitehouse v Jordan [1981] 1 ALL ER 267.