Identifying legal issues PDF

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Identifying legal issues podcast: Introduction: -

There is a clear distinction between factual and legal issues/questions of fact v questions of law

Issue types: -

In any case, there will be questions of both fact and law (although not all will be relevant to its outcome) There is a clear distinction between questions of fact and questions of law A judge considers evidence as to the facts presented by both sides, then rules on the matter of law It is not the role of the judge to gather evidence as Australia does not have an inquisitorial system of courts but rather adversarial system

Factual issues: -

Questions of fact include the ‘who, what, where, when, why and how? In a scenario Questions of fact can be resolved via the use of evidence (scientific data, expert testimony, witness accounts, demonstrations, samples from the scene of the crime etc.)

Example- car accident -

How fast was the car travelling? What colour was the car? Who was driving the car? Was the driver intoxicated? Were there passengers in the car? Was there damage to property or persons? Where was the accused at the time of the accident? When did the accident occur? Are there any witnesses? What did the witnesses see?

Legal issues: -

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Questions of law can be less straightforward Questions of law can only be resolved through the interpretation and determination by a court (or tribunal) via the application of legal reasoning regarding relevant legal principles and sources (e.g. Statute and case law) Is it truly a question that only a judge can decide on? How to identify and phrase legal issues can be difficult Phrase your legal issue as a question In formulating your legal issue, consider the following: o Is there a matter of law in contention? o What are the rights and duties of the parties involved? o Is there someone involved in harm or breach of the law? o Is there existing law (cases and legislation) applicable and binding on the given scenario?

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Has there been a contravention of such law? Is there contention as to the interpretation of such law? Has a key legal concept been upheld or undermined (e.g. The rule of law)

Generality: -

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Generality allows us to expand our scope of existing legal doctrine Generality allows us to find common ground between cases and to apply reasoning and precedent from similar situations in the pursuit of resolution Generality states that legal issues should be worded and approached in general terms and not restricted specifically to the facts of a case The core legal issue should be phrased as a question to which the ratio decidendi is a direct answer ‘In any case, it is often not possible to anticipate all possible eventualities and draft laws specifically to meet them. Consequentially, statutory provisions are often pitched at a higher level of generality’ the same characteristics of legal language can be seen in relation to case law sources it is possible to regard the provision of law for which a case is authority in narrow, specific terms the famous case of Donoghue v Stevenson would be regarded as establishing that a manufacturer of ginger beer owes a duty not to allow snails to get into the product, that being the specific fact situation before the court to express authority in this highly specific way would not be very helpful and would make it difficult to produce future legal decisions, thus hindering the development of broader case law principles consequentially, its authority has been viewed at a higher level of generality it has been taken as establishing that a manufacturer of consumer goods owes a duty of care

Example – Emu stolen from wildlife park -

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Legal questions: Does the taking of an animal from a wildlife park without the consent of its owners constitute as a criminal offense? What penalties are applicable to individuals who take an animal from a wildlife park without consent of its owners? What are the legal obligations of wildlife park operators with respect to animals in their care? Can feather dale wildlife park sue the individuals who stole their emu? Generality applied to this overly specific question: 1. Does the taking of an animal from a wildlife park without the consent of its owners constitute a criminal offence? 2. Does the taking of an animal from a wildlife park without the consent of its owners constitute as a criminal offense pursuant to the Crimes Act 1900 (NSW) 3. Does the taking of an animal from a wildlife park without the consent of its owners constitute as a criminal offense pursuant to the Crimes Act 1900 (NSW) s 505? the legal specificity in how you approach legal issues is often dependant on the type of work or the form of assessment you are completing: is it an individual essay? Is it a group research proposal? Is it an IRAC problem? Is it a thesis?

Neutrality: -

legal issues are not synonymous with social, political, moral or ethical issues the answer must be grounded in legal reasoning

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questions must be phrased as value neutral avoid using loaded, value laden or normative terms in phrasing your legal issues examples which are not legal issues in this scenario: is it wrong to take an animal away from its owner? Is it right to keep native animals in captivity? Should the government allocate more funding to keep national parks more secure Should native animal thieves be subject to harsher penalties?

Summing up… -

Issues of fact are solvable by evidence Issues of law are resolvable by a judge or decision maker in whom judicial power is vested How do I frame legal issues? As general and value-neutral questions...