Activity 5h

1. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the ability of enforcement considerations to achieve the principles of justice requires students to write about relevant strengths and weaknesses of costs considerations. Responses will vary according to the arguments selected.

        Arguments in support of enforcement considerations achieving the principles of justice include:

• Courts provide various methods for the enforcement of court orders to protect against an unsuccessful defendant avoiding the consequences of the court’s determination – thissupports the plaintiff in gaining access to the benefit of the lawsuit.
• By assisting the successful litigant to secure payment of their debt, the courts protect the integrity of the legal process, promoting the principle that judgments will be enforced fairly.
• Having a range of options for a judgment debtor to repay their debt recognises that some parties may struggle to meet their obligations, but acknowledges the right of the judgment creditor to obtain payment of the debt – this reinforces equality in the enforcement of court orders.

        Arguments against enforcement considerations achieving the principles of justice include:

• Potential plaintiffs who have suffered significant harm might be discouraged from accessing the justice system if they know that the wrongdoer does not have the financial capacity to pay any judgment against them, or has the ability to move money out of their personal name and avoid payment that way.
• Defendants may not be treated equally by a complainant on the basis of their ability to pay damages and adverse costs awards – for example, an indigent wrongdoer may be able to get away with behaviour that a wealthier wrongdoer could not, because any potential plaintiff might be discouraged from taking action against an indigent wrongdoer who would not be able to satisfy a judgment against them, anyway; organisations such as insurance companies and government bodies might be preferred defendants.
• Seeking enforcement of an unpaid court debt may engage a plaintiff in an additional round of legal proceedings after they may reasonably have expected that their case should have concluded – a defendant determined not to pay may prolong this process for an extended period, testing their opponent’s commitment to enforcing a court’s judgment through legal means; a greater range of punitive measures against recalcitrant debtors would assist the courts to enforce payment of judgment debts and enforce fairness for a plaintiff who has been wronged.
• The likelihood that a judgment debtor will be unable to pay may factor into a judge’s calculation of an appropriate amount of damages – different parties may not be treated equally by the courts under such an approach.

2. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence when referring to the arguments for and against enforcement considerations, that it does achieve one principle of justice. Responses will vary according to the arguments selected.