mock trial competition case materials 2020 round 3€¦ · 2020 round 3 . mock trial competition...

The Law Society of Western Australia Level 4, 160 St Georges Terrace, Perth WA 6000 | Postal: PO Box Z5345, Perth WA 6831 or DX 173 Perth

Phone: (08) 9324 8600 | Fax: (08) 9324 8699 | Email: [email protected] | Website: lawsocietywa.asn.au

Mock Trial Competition Case Materials 2020 Round 3

Mock Trial Competition Round 3 2020 The Law Society of Western Australia Page 1

Best Burgers & Pizza Pty Ltd v Ward

Case Summary

This is a civil case in which the Plaintiff is seeking compensation for the damage done to the property the company owns. These damages include the costs of reconstructing its fast food restaurant. According to the Plaintiff, it is alleged that during a demonstration that occurred outside the Plaintiff’s fast food restaurant, the defendant lit a flag on fire that ultimately caused the building to be destroyed. There was also paint thrown at the restaurant window. The Defendant denies these allegations. The Prosecution and Defence teams will receive the following: 1. Legal Notes.

2. Copy of the Statement of Claim issued by the Plaintiff against the Defendant.

3. Copy of the Notice of Defence filed by the Defendant.

4. Statement of Plaintiff witness Vincent Globo (male)

5. Statement of Plaintiff witness Karen Bunnings (female)

6. Statement of Defence witness Jim Ward (male)

7. Statement of Defence witness Phoenix Ashe (female)

8. Exhibit: Statement of Constable Kehr

9. Exhibit: Photographs of the restaurant

Please note: ☼ the above outline is also the order of appearance of each witness. ☼ the gender of each witness is fixed in order to avoid difficulties in references to “he/she” etc.

Students playing the part of a witness are to adopt the role of male or female as indicated. ☼ The Plaintiff should request to the Bench that the evidence contained in the statement of PC

Kehr should be read in by consent as he was unable to attend and his evidence has been accepted by the defendant.


Legal Notes As this is a civil case, the Plaintiff bears the onus of proving its case on the balance of probabilities. The Plaintiff bases their case on two alternative causes of action: Negligence and Trespass to Land. Negligence: In order to succeed in negligence the Plaintiff must prove that: 1. the Defendant owed a duty to the Plaintiff to take reasonable care not to injure the Plaintiff; 2. the Defendant breached that duty by failing to take reasonable care; 3. the breach caused injury or damage to the Plaintiff; and 4. the injury or damage was not too remote a consequence of the breach of duty. The general test for determining whether a defendant will owe a duty of care is as follows: Donoghue v Stevenson [1932] AC 562, 580 (Lord Atkin) “You must take care to avoid acts or omissions which you can reasonably foresee would be likely

to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be−persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” Trespass to Land: The other basis upon which the Plaintiff has based its course of action is on trespass. Trespass to land occurs when a defendant directly and intentionally (or possibly negligently) interferes with the land in the exclusive possession of the plaintiff without their consent or other legal justification: Plenty v Dillion (1991) 171 CLR 635, 639 (Mason CJ, Brennan and Toohey JJ). In order to show that Trespass has occurred there must be:

• Direct physical contact by the Defendant with land exclusively possessed by the Plaintiff. Usually trespassory contact is made by the Defendant entering, or remaining on, the Plaintiff’s property, but a Defendant may also commit trespass to land by directly causing some object to make contact with the land.

• This contact with the Plaintiff’s property is the direct result of the Defendant’s actions.

• The Defendant’s actions were intentional or negligent, if this is not the case the Defendant cannot be held liable.

It is a Defence to an action for trespass for the Defendant to prove that the entry onto the land was for a legitimate purpose or that the land was open to the public. Note: 1. The issues relating to contributory negligence need not be raised. The question to be

addressed in this case is: did the Defendant cause the damage to the Plaintiff's property. 2. Students should note the Defendant's admissions in their Defence. This is evidence already

conceded. 3. The law is reasonably straightforward and only the authorities above should be cited. In

Opening and Closing addresses Students, should refer to the broad propositions set out above and show how the evidence supports their case.


IN THE SUPREME COURT OF WESTERN AUSTRALIA HELD AT PERTH

CIV 1234 of 2020

BETWEEN:

BEST BURGERS & PIZZAS PTY LTD ABN: 23 983 648 408

Plaintiff

and

JAMES WARD Defendant

PLAINTIFF’S STATEMENT OF CLAIM

Date of Document: 21 March 2019

Filed on Behalf of: The Plaintiff

Prepared by: Paramount Lawyers 1000 St Georges Tce PERTH WA 6000 Attention: Mr S Gunn

1. The Plaintiff is a company that:

(a) trades under the name “Best Burgers & Pizzas Pty Ltd”; and

(b) carries on business as a fast food restaurant.

2. The Plaintiff is and was at all material times the registered proprietor of the land described as Lot 50 on Plan S5672 being the whole of the land in Certificate of Title Volume 1234 Folio 567 (“the Plaintiff's Land”).

3. At all material times the Plaintiff was entitled to possession of the Plaintiff's Land and the building constructed on the Plaintiff's Land from which it operated a fast food restaurant ("the Restaurant").

4. On 22 February 2019 at approximately 12.30pm the Defendant, together with a number of other persons entered onto the Plaintiff's Land.

5. While on the Plaintiff's Land the Defendant intentionally caused damage


Particulars of Damage

The Defendant:

(a) Set on fire a flag, the property of the Plaintiff, ultimately destroying it;

(b) Threw a can of Red paint at a window of the Restaurant causing the window to shatter and the paint to be smeared on the window.; and

6. As a result of the Defendant's setting the flag alight and failing to extinguish the fire, the burning flag set alight wood chips in the gardens surrounding the Restaurant which in turn set on fire

the Restaurant, destroying it.

7. Further and in the alternative, the Defendant owed a duty to the Plaintiff to ensure that whilst on the Plaintiff's Land the Defendant did not do any to damage the Plaintiff's Land or any building or property thereon.

8. In breach of the duty pleaded in paragraph 7 hereof the Defendant caused damage to the Plaintiff's property.

AND THE PLAINTIFF CLAIMS:

(a) Damages, including Replacement of Restaurant, fixtures and fittings in an amount of $1.1 million.

(b) Interest from 22 February 2019 to the date of the Judgment at the rate of 6% per annum.

(c) Costs.

COUNSEL FOR THE PLAINTIFF


IN THE SUPREME COURT OF WESTERN AUSTRALIA CIV 1234 of 2019

BETWEEN:

BEST BURGERS & PIZZAS PTY LTD ABN: 23 983 648 408

Plaintiff

and

JAMES WARD Defendant

DEFENCE

Date of Document: 15 April 2019

Filed on Behalf of: The Defendant

Prepared by: Superior Lawyers 2000 St Georges Tce PERTH WA 6000 Telephone: 086543 9876 Attention: A. McBeal

1. The Defendant admits to paragraphs 1, 2, 3 and 4 of the Plaintiff’s Statement of Claim.

2. Save that the Defendant admits that the Defendant was on the Plaintiff's Land on 22 February

2019, the Defendant denies the allegations in paragraph 5 of the Statement of Claim.

3. The Defendant denies each and every allegation in paragraph 6, 7 and 8 of the Statement of Claim.

4. The Defendant denies that the Plaintiff has suffered any loss or damage as a result of the actions of the Defendant as alleged or at all and denies the Plaintiff is entitled to the relief claimed or any relief or at all.

COUNSEL FOR THE DEFENCE


STATEMENT OF VINCENT GLOBO

1. I am employed by Best Burgers & Pizzas Pty Ltd as the Deputy Assistant Manager of their

restaurant in Hill Street, Hillsdale.

2. I have worked for the company for seven years since I left school and have progressed

upwards through the ranks to my present position.

3. On Friday 22 February 2019 I was working in the restaurant when I became aware of a

commotion going on outside at approximately 12.30 pm. I moved to see what was going

on. The restaurant was quite busy, but I could see through the main window about 7

metres away that there was a crowd of demonstrators on the pavement outside.

4. The demonstrators were mainly young men and women, aged I would say between 16 and

30 years. Most of them wore green or ‘camouflage’ army type shirts and had large hats

and sunglasses obscuring parts of their faces. They had banners saying things like “There

is no Planet B”. They were all shouting and screaming “Meat is Murder!” These comments

were all offensive and unfair as Best Burgers & Pizzas has very strong environmental

policies.

5. I called the Police immediately.

6. One of the demonstrators, a man with a distinctive red mohawk haircut, who I later pointed

out to the police, was standing under our company flag.

7. The Flag was on fire and there were people dancing around the burning flag in the smoke.

I couldn't believe the desecration of our company flag. As he approached the window, he

was in a fury and I heard him shout: “the flag sizzles better than your burgers.” I mean,

these people are savages.

8. Then the same person broke away from the group and ran to another person, grabbed

something out of a bag and threw it at the window.

9. Red paint splattered against the window, covering a large part of it. The paint can then

struck the window with a loud noise but the window did not break.

10. Obviously I was concerned for my customers. I could see that a number of diners were

cowering in their seats. They were clearly frightened. I moved to the doorway of the

restaurant and went outside. Members of my staff were trying to move the demonstrators

away.

11. The demonstrator who had thrown the paint, the same one that burnt the flag, was now

close to the door. I could see that he had a silver stud below his lower lip and at least one

ring through his nose.

12. I stood in the doorway with a broom for protection and then luckily the police arrived and

the demonstrators ran away.


13. The window was badly damaged by the paint and my staff were so traumatised that I

decided to close the store.

14. About 11pm that night, I received a call from my Manager. She said: "those hippies have

burnt down the store." I couldn't believe it. I went to the store and saw the building was

completely destroyed.

15. In all the commotion I must have forgotten about the burning flag. There is wood chip

mulch all around the building and vats of oil in the yard. It was a very hot day and the

burning flag must have set alight the wood chips and that, in turn, set the building on fire.


STATEMENT OF KAREN BUNNINGS

1. On Friday 22 February 2019 I went shopping in Hillsdale with my partner and two children.

2. 22 February 2019 was a very hot day, with a max of 40 degrees and after a couple of hours

we decided to go to Best Burgers for lunch. We got our food at the counter and took a

table near the window.

3. As we were eating our food, a crowd of about 50 people started to gather outside the

restaurant. Some of them had placards and others were carrying large bags but I could not

see what was in them.

4. At first the crowd was quite good-natured and we were not too worried. They were

standing outside and chanting. However, after a few minutes, the crowd got bigger and the

demonstration got louder. The chanting got quite menacing with shouts about “Murderers"

and things like that.

5. I could see some of the group dancing in a circle and looking at something on the ground. I

couldn’t see what it was.

6. I got up to get some paper towels; suddenly there was a huge bang.

7. The window we were sitting near had been splashed with red paint that was spreading

down over a large area of the window. Luckily the window has safety tint as the paint tin

was hurled at the window.

8. I saw a glimpse of the demonstrator running from the window back into the crowd. He was

wearing a green army type shirt and combat trousers like nearly all the other

demonstrators. I didn’t take notice of much as I was scared. I am sorry I can’t help you

anymore.

9. My children were very frightened and were screaming. I pulled them away from the table

and we moved to the side of the restaurant. I was very concerned for their safety, as I am

the Manager of a timber supply store which has recently been subjected to attacks from

protesters who believe that the store is selling timber from old growth forests. I strongly

believe that the protesters were mistaken in their views and they should not be allowed to

behave in such a way.

10. After a few minutes, I left the children with my partner and went to the door of the restaurant

to see if we could get away. The manager had been standing in the doorway.

11. When I got to the door, I saw that the Police had arrived and the manager was talking to

them. It looked like he was describing the guy who threw the paint.


STATEMENT OF JIM WARD

1. I am 25 years old and a post-graduate student at Hillsdale College where people call me

“Sid” due to my hair style as I have an eighties punk rock look. My particular interest is

environmental studies. I am preparing a thesis on the depletion of the rainforest in Brazil. I

am a committed supporter of peaceful groups such as Greenpeace. I am also a vegan and

I have not eaten meat since I was a child. I was once a member of a more militant animal

rights group but I have not been involved in any of their activities for some years.

2. I believe operations like Best Burgers & Pizzas damage the environment. My main

objection is their policy of deforestation to provide open land to grow cattle feed. If the

remaining areas of rain forest in countries like Brazil are destroyed the effect on the

environment will be catastrophic. Food producers must learn to operate sustainably.

3. My beliefs have led me to take part in a number of demonstrations in support of the

environmental cause. One of these was a demonstration at Best Burgers in February

2019. The local branch of "Existence Resistance" organised the demonstration; a small

environmental pressure group dedicated to the pursuit of environmentally friendly policies

by businesses. I am not a member of this group but I had heard about the demonstration

from my friend Birdy who is very active in this field.

4. The demonstration was intended to be entirely peaceful. The focus of this demonstration

was to be the symbolic planting of some saplings in soil outside Best Burgers to represent

the many trees they have had destroyed.

5. On 22 February 2019 I went along with about 20 or so members of “Existence Resistance.”

A number of them were carrying bags of top soil and some saplings for planting in front of

Best Burgers. When we got to Hill Street there was some singing and chanting. It was all

good-natured and not in the least threatening. Outside Best Burgers we began to prepare

the small plantation. It was a small, well ordered demonstration. There seemed to be

considerable support from the onlookers.

6. At some point another group of activists joined us in the demonstration. This group of

about 20 people had not been with us at the start. They were much more vocal than the

rest of us and seemed to be more directly hostile to meat eaters. For some time they

chanted while we continued to prepare the soil outside the restaurant window for planting.

Most of them were wearing green army type shirts (as indeed were some of us). This is a

very common form of dress. Some of them had their faces partly obscured by large hats

and sunglasses.

7. I did see some people burning a flag. Frankly, I can understand their attitude - I mean what

is burning a flag compared to the damage Best Burgers does to the environment.


8. When I saw the flag go up in flames I went over to try to put it out. I don't recall seeing

what happened to it.

9. I yelled to the Manager through the window “Call the Police.” There was lots of noise.

10. One of the new demonstrators ran forward past me and threw a can of paint towards the

window.

11. I moved to get out of the way, but some paint still splashed on my shoes.

12. The culprit ran off. I did not see where they went.

13. I also have a criminal record so I wanted to get the heck out of there however stayed to try

and do the right thing as I knew I had done nothing wrong

14. When a police officer arrived, the man from Best Burgers accused me of throwing the paint

at the window and behaving violently. None of that is true. I was wearing a green army

shirt with a large hat and sunglasses but so were many other demonstrators. I do have

some facial jewellery, but I believe the manager has just described that from when he saw

me just before the police arrived. Of course that accounts for how he picked me out of the

identification parade.


STATEMENT OF PHOENIX ASHE

1. I am 25 years old and a member of an alternative lifestyle community, where I have acquired

the name “Birdy”. We are presently based on some land known as Foxglove Hill, which is

threatened by the proposed construction of the so-called Hillsdale by-pass. Some members of

the community have built dwellings in the trees there. I have the responsibility for the tunnel

system we have built in an effort to occupy the land and prevent the destruction of this natural

landscape to build another road.

2. I am a veteran of a number of occupations and demonstrations in support of the environmental

cause. In fact, I have also taken part in several anti-capitalist demonstrations such as the

“Occupy Perth” demonstration. My own view is that these demonstrations should set out to be

non-violent but one has to be prepared for the fact that the business community and the police

may well react to our challenge with a show of force.

3. On 22 February 2019 I took part in the Best Burgers demonstration. I went with my friend Jim

Ward. I met him on a demonstration over a year ago and we keep in touch. I had told Jim

about this demonstration and he was particularly keen on the idea of planting some small trees

as a gesture against Best Burgers. I knew that there would also be members of groups like

Direct Action for Animals (dedicated to the humane treatment of animals) at the Best Burgers

demonstration. These groups have in the past used red paint, representing animal blood, to

smear Best Burgers’ premises.

4. At the demonstration, I saw Jim, or Sid as I call him, go towards the Best Burgers window to

help with the planting. I had a placard and I was joining in the chanting. Some campaigners

against cruelty to animals had come along and they added to the atmosphere.

5. My favourite direct action is to attack a symbol of the people against whom we are

demonstrating rather than their employees who are just pawns in a wider game.

6. Someone did get carried away and threw some red paint at the window but I have no idea who

that was. I do not even know if it was a demonstrator or someone trying to cover

demonstrators in paint.

7. All I can say is the Police arrived very quickly. When they arrived, I saw Jim at that stage

covered in paint.

8. I did not see Jim with any paint at the demonstration nor did I see him with a flag. I did not see

him behaving violently at any stage, although frankly I would suggest that violence would have

been justified in the face of the violence from the other protesters and the manager who was

waiving a broom around.

9. I was told by a Best Burgers employee that a group of us had burnt one of their flags.

10. If the place burnt down then good riddance I say, but we didn't do it, it was the other protesters.


STATEMENT OF CONSTABLE KEHR

There is nothing to be challenged in this statement – it is to be tendered by consent

1. I am a Constable of Police stationed at Hillsdale Police Station. On 22 February 2019 I was

on duty in uniform. At about 12.35 pm, I had just started a double shift. As a result of

information, concerning a disturbance outside Best Burgers, I proceeded with other officers

to Hill Street.

2. On our arrival there I could see a crowd of at least 30-40 people outside Best Burgers. The

main window of Best Burgers was more or less totally covered in red paint. I also noticed a

quantity of soil and shrubs strewn around the area of the pavement outside Best Burgers.

3. I spoke to the manager of Best Burgers, Mr Globo. As a result of what he told me I spoke

to Jim Ward. I said” “You are under arrest for criminal damage and trespass.” I then

cautioned him to which he made no reply. I noticed there was red paint on the defendant’s

footwear and there was a faint smell of smoke.

4. On 8 June 2019 I was present at an identification parade. Mr Globo identified Ward as the

person who threw paint at the window.

5. On the evening of 22 February 2019, as a result of information received, I again attended at

Best Burgers. The Best Burgers building was on fire and was almost totally destroyed.

6. Mr Ward was subsequently charged with wilful damage.

7. Mr Ward was acquitted as the prosecutor could not prove the case beyond a reasonable

doubt.


Best Burgers & Pizzas: January 2018:

Best Burgers & Pizzas: March 2019:

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