2. Writing for LAW2004 5 (2021) PDF

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Writing(for(Finance(Law( LAW20045((Finance(Law( Unit( Convenor( LAW20045( Finance( Law.( This( material( is( designed( for( those( students( studying LAW20045.(

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WRITING FOR FINANCE LAW

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Introduction** ! Welcome!once!again!to!LAW20045!Finance!Law.!! ! No!doubt!many!of!you!are!experienced!students,!and!I!do!not!mean!to!insult!your!ability.! However,!for! many!others! this!will!be! your!first! experience! with!legal!studies,!and!so!I! have! decided! to! prepare! this! booklet! to! assist! you.! ! The! material! is! either! adapted! or! taken!directly!from! previous!work!as!listed! in!the!References!section,!as!well!inherited! from!Unit!Guides!by!several!authors-!many!of!them!unknown!from!various!units!I!have! taught!over! the!years.!It!has!also!been!updated!with!new!material!from!students’!work! in!2019.!Thus,!I!do!not!claim!authorship!of!much!of!the!work!contained!herein.!However,! this! work! reflects! a! vast! amount! of! experience! and! as! such! I! believe! and! hope! it!helps! you.!! ! The! text! is! NOT! a! comprehensive! list! of! answers! for! the! tutorial/seminar! questions.! Instead!it!is!an!instructional!text.!The!methodology!being!taught!here!can!be!applied!to! most!if!not!all!law!units.!In!essence!this!booklet!aims!to!implement!an!old!saying:! ‘Give! someone!a!fish!and!you!feed!them!for!a!day;!teach!someone!to!fish!and!you!feed!them!for! a!lifetime.’!(Maimonides)! ! The!purpose!behind!you!studying!Law!units! is!to!gain!knowledge!(obviously),!but$there$ is$ also$ the$ expectation! that! you! will! use$ that$ knowledge! in! new! or! unexpected! situations.! Hence! many! questions! in! Law! units! are! what! are! called! “problem-style”! questions.!!! I! recommend! that! you! arm! yourself! with! the! best! opportunity! to! achieve! your! best! through!active!practise!using!the!methodology!to!write/prepare! answers!to!the!tutorial! questions.!This!will!help!prepare!you!for!the!final!examination.! ! I!wish!you!well!in!your!academic!“travels”.!

! Andrew!Coleman! Unit!Convenor,!! LAW20045.!!

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* Table*of*Contents* Introduction ........................................................................................................... 3! PART*1 ................................................................................................................... 6! General*Information-Legal*Studies ......................................................................... 6! Detailed!Tips ........................................................................................................................................................ 6! PART*2:*Tackling*Problem-Based*Questions*(Generally)........................................ 10! General!Tips....................................................................................................................................................... 10! More!Tips!in!Detail ......................................................................................................................................... 10! PART*3: ................................................................................................................ 15! Problem*Style*Answer*Methodology .................................................................... 15! What!is!“IRAC”?................................................................................................................................................ 15! There!are!many!different!variations!of!IRAC ...................................................................................... 16! How!to!Use!IRAC.............................................................................................................................................. 17! USE!IRAC!BUT!don't!do!this: ...................................................................................................................... 17! Instead!do!this:................................................................................................................................................. 17! Overall!Structure!(Multiple!Issues)......................................................................................................... 17! Planning!an!Answer ....................................................................................................................................... 18! Sample$Question$1:.......................................................................................................................................... 18! Sample$Answer$Plan ....................................................................................................................................... 19! Putting$the$Plan$into$an$Answer$Format............................................................................................... 20! Assignments ...................................................................................................................................................... 21! Tips$in$Detail ...................................................................................................................................................... 21! Examinations .................................................................................................................................................... 22! General$Advice................................................................................................................................................... 22! Tips$in$Detail ...................................................................................................................................................... 22!

PART*4: ................................................................................................................ 24! SAMPLE*QUESTIONS*AND*ANSWERS .................................................................... 24! Sample!Question!2:!Assignment ............................................................................................................... 24! How!(Did)!Do!We!Arrive!at!Such!an!Answer? .................................................................................... 27! Legal Principle/Rule [LP]: - Implied by the Courts for Business Efficacy......................... 28! Application: - It is reasonable and equitable to both parties, since both benefit from compliance with the term, as if it is safe the Council may not be sued for negligence, but also will ensure tenants and it obviously does not impose any burden upon them other than financial and what a reasonable person would expect of any owner of a building. it is also necessary for the contract to work as if the tenants cannot get access to their offices or their clients cannot then it defeats the purpose of the whole tenancy agreement. Is it so obvious, maybe not as tenants often pay for expenses/outgoings such as electricity but maintenance of the actual building? I’ll assume not, it is capable of clear expression and the contract is silent therefore no contradiction..................................................................................................................................................... 28! Application: - A council or indeed any landlord would be expected to exercise a reasonable level of care in the maintenance of any lifts, or stairs, in a building owned

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by them. After all it is an important health and safety issue, but also can affect the business success and profits of the tenants. .................................................................................. 28! LP: - A condition is a term so important that a breach of it goes to the very heart of the contract: if not then a warranty....................................................................................................... 28! Application: - Not clear that it is a condition or a warranty, since it can be breached in a variety of ways and in differing degrees of severity. ............................................................... 29! LP: - An intermediate term, is one where the court cannot determine whether a term is a condition or a warranty. The remedy depends on the type or severity of a breach; serious breach the remedy is as per a condition; termination and damages; a minor breach damages only like a breach of a warranty. ...................................................................... 29! Application: - it is more likely to be a minor breach, but an interesting argument is that entry or access to the premises is important, e.g. what would happen in an emergency?? Therefore, there should be a right to termination, and also damages. And this is what your client wants to argue as it is not keen to pay the rent.................. 29! Issue [4]:- How do calculate damages in this instance? ........................................................... 29! However, if the Courts were reluctant to imply such a term, since arguably occupation of the building can continue with a less than adequate lift, then it could be argued in the alternative that a council or indeed any landlord would be expected to exercise a reasonable level of care in the maintenance of any lifts, or stairs, in a building owned by them. After all it is an important health and safety issue, but also can affect the business success and profits of the tenants. Such terms have been implied into contracts of maintenance as held in Helicopter Sales Pty Ltd v Rotor Work Pty Ltd and Costa Vraca Pty Ltd v Berrrigan Weed & Pest Control Pty Ltd. It is argued here that such a term would be reasonable for the tenants to again enjoy a reasonable level of “quiet possession.”.............................................................................................. 30! Sample!Question!3:!Examination ............................................................................................................. 32!

Exercise ................................................................................................................ 34! References ........................................................................................................... 38! !

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* PART*1* General*Information-Legal*Studies* Detailed Tips1

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1. Be aware that the law is usually concerned with disputes.! In most questions in law examinations or tutorials, the questions will be predominantly about disputes, i.e. in a problem format with a set of facts presented in an adversary form. Why? Because it mimics what happens in real life.! 2. Disputes are often complex. ! Many problems, especially in the commercial sphere, are complex and require the application of more than one rule or approach. A single dispute necessitates a second or even third “alternative argument”. There is always a “counter-argument”, sometimes they are successful, and sometimes they are not. ! 3. The Australian legal system is essentially an “Adversarial system” – Plaintiff versus Defendant. ! Some parts of the Australian legal system (e.g. administrative law) use what is called an investigative approach, where the role of the Court is to investigate in addition to pass judgement on the evidence and arguments placed before them.! However, for the most part the legal system in Australia is an adversarial system, prosecution against the accused, plaintiff against defendant: one side against the other. Just read the case names: Donoghue v Stevenson, R v Jones, etc. It is competitive and each side has a fair opportunity to present their “case” to the Court, and each side will prepare the best possible presentation simply because it is in their best interests. ! The role of the Court is to then “judge” adjudicate” determine” which side “wins” by assessing both side’s argument, based on evidence that satisfies the relevant level of proof. Thus each side is attempting to persuade the Court to accept that their interpretation of both events, and the relevant legal rules, is the correct one.!

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1Adapted! from! Author! &! Source! unknown,! A$ Guide$ to$ Answering$ Legal$ Problems$ in$ Tutorial$and$Examinations.$$$$ LAW20045 FINANCE LAW

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The theory behind adopting an adversarial approach is that when each party (protagonist) trys their best to “win” the truth will be exposed. The role of judges, by not being involved or not assisting either side in the preparation of the case, i.e. not investigating by gathering evidence or directing further investigation where there are gaps or missing information, is intended to ensure the Court maintains distance from each party, and thus remaining unbiased. This theory is not without its flaws and is somewhat controversial, because often it is in the best interests of a protagonist to ensure the “truth” is not exposed, and for various reasons evidence is not available or alternatively, barristers make mistakes in the tactics or arguments they use: they are human. ! 4. The Australian legal system is a common law system.! That means that there are two sources of laws in Australia: ! a. The various Houses of Parliament- Federal, State and Territory. The laws they make are called: Acts of Parliament/Statutes/Acts.! b. The Courts: the judgement of judges in individual cases. The laws they make are called: judge-made law, divided into two basic sub-categories- common law and equity.! There is also something that is referred to as “soft law” - regulatory guides published by ASIC (e.g. in Module 4 RG 209, Credit licensing: Responsible lending conduct.) These are guidelines published by ASIC, indicating what they consider to be “legal” conduct or conduct that they believe breaches the law (statutes or common law). Consequently, they will then take action and prosecute the offender. ASIC is a regulator not a court - so these regulatory guides are ASIC’s interpretation of the true laws, their opinion so to speak of what constitutes illegal behaviour, but a Court will still determine whether the action is illegal. So ASIC may be wrong, BUT complying with the regulatory guides will mean that you are not likely to be prosecuted: hence they have some coercive effect, and that is why they are called “soft laws”. ! ! 5. Judges disagree!! Judges are individuals and disagree- so you will see “split decisions” where a majority decides in favour of the plaintiff and the minority don’t- e.g. 4:3 if there are seven judges on the “bench” (determining the court case). Sometimes they may agree on the final decision, i.e. liable in negligence, but disagree as to why. Although it can be confusing at times to work out what is the correct “precedent” that the case establishes when judges disagree about why one party “wins”, there is an advantage to this system. Allowing LAW20045 FINANCE LAW

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judges to express their own individual opinion enables the common law to develop freely. There are examples where a judge’s decision- a judge who is in the minority, becomes the law in the future, when a court reconsiders the precedent and decides for various reasons that the minority judge’s decision is preferable (“better”). Here’s an example.2! “In the case of MLC Assurance Co Ltd v Evatt, a total of 14 judges heard the case. A single judge in the Supreme Court of New South Wales first heard it. The single judge decided in favour of MLC. Then Evatt appealed. The case therefore went to the Full Court of the Supreme Court, where there are normally three judges. In this case, two of the three judges found for Evatt. So MLC appealed to the High Court of Australia, where there are normally five judges. Three judges decided in Evatt's favour while the minority, the other two, thought that MLC should have succeeded. MLC took the final avenue open to it and again appealed, this time to the Privy Council (a course of action which is no longer available in Australia). In the Privy Council three judges found in favour of MLC, and two supported Evatt's case. In the end, therefore, MLC won the case. ! If you could equate the case of MLC v Evatt with a theoretical tutorial or examination question which was being answered by fourteen judges, seven, by definition, got it right; seven, on the other hand, on this analogy, got it wrong.” ! 6. Recognise that the law is not always certain in a given situation.! ! This example illustrates that the law is not always clear or certain. These rules may appear fine and workable in one context but not in another. And if you think it is easy to express a rule to cover every situation, think again. Given that these rules govern human behaviour, that moral attitudes change, it is perhaps more accurate to say it is a miracle that there is any certainty at all. Law is not like accounting or a maths style unit, (2+2 = 4 always, but an asset can become a debt? It follows from this that in answering your questions you may not always be able to be dogmatic about what the law is, and it is not necessary or even wise sometimes to be categoric in your answers. The idea that law is full of uncertainty (and all those comments about lawyers are true) may cause you as students some concern. So it would be wise to remember to approach legal study from this perspective: giving “advice”. ! ! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 2!Author!&!Source!unknown,!above!n!2.!$$$

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7. Lawyers give “Advice” rather than provide an “answer”.! All these factors make the prediction of an outcome difficult. That is why until you receive the Court’s decision there is no ironclad guarantee that you will “win”. Even if you do matters can be appealed to a higher court. Therefore you should not always expect a single or an obviously correct answer. Hence you give advice, not an answer.! !

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PART*2:*Tackling*Problem-Based*Questions* (Generally)* General*Tips3** The! following! tips! can! be! applied! to! problem-style! questions! in! both! assignments! and! examinations.! (a)

Do!not!wander!in!your!answer.!

(b)

Do!not!repeat!the!question.!

(c)

Do!not!use!superfluous!introductions.!

(d)

Do!not!answer!in!the!form!of!a!long,!continuous!essay.!Use!paragrapghs! to!break!the!answer!into!more!“digestable”!parts.!

(e)

Do!not!repeat!yourself.!!Keep!your!discussion!of!an!argument!or!issue!in! one!place.!

(f)

Think! your! arguments! through! to! their! conclusions! before! beginning!

(g)

Make!the!examiner!aware!of!the!issues!that!you!have!recognised.!

(h)

Make!sure!that!your!answer!is!sufficiently!comprehensive!and!covers!the!

(i)

Read!the!question!carefully.!

(j)

Use!a!logical!structure!in!your!answer.!

(k)

Use!correct!legal!expressions.!

your!answer.!

issues!in!detail.!

More*Tips*in*Detail4** 1. Pick% the% relevant% issues.! There! is! no! point! in! giving! a! brilliant! analysis! of! insurance! law! if! the! problem! involves! bankruptcy.! (You’ll! receive! some! kind! words,!but!no!marks).!Picking!the!issue!often!requires!considerable!thought!and! a!careful!analysis!of!the!question.!! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 3!Author!&!Source!unknown,!above!n!1.!$ 4!Ibid;!A.!(2018).!Writing$for$Business$Law:$A$guided$approach$to$the$application$of$IRAC$ for$business$law$students!(Unpublished!paper).!Retrevied!from! http...