LAW1600 Tutorial Questions & Answers PDF

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Tutorial 1 1. Discuss the potential ramifications of not having a system of courts.  Independent decision makers o If we had no system of courts, there would not exist an independent decision maker to settle our disputes or claims and there would be no formal process to settle these disputes  Enforcement of law o No formal system would exist to delegate authority, judge accountability and oversee the enforcement of laws and rules  Consistency o There would exist no doctrine of precedent or independent judge makers to ensure that the law is consistent.  Judges o Without a system of courts, judges would not have a place to exist, this means no law would be able to be created through the doctrine of precedent. 2. Discuss the potential ramifications of not having a legal profession. Without a legal profession, people with professional knowledge about the law would exist. This means that there would be no one to defend or answer inquires for clients. There would be no one to assist with mediation and resolving conflicts. No one would exist to ensure the judicial system operated smoothly and efficiently. 3. What can you use as a legal authority when making a legal argument? When making a legal argument you can use case law, constitution and statues. 4. Why can you not use secondary sources of law in making legal arguments? Secondary sources are not legal authority and should not be used when making legal arguments, but can be used to provide background. This is because they are not the law, but in fact are just the interpretation of the law. 5. Explain how you can use secondary sources of law in making legal arguments. They can be used to provide background information in your legal arguments on certain topics or issues. May also be useful in helping to interpret legislation. 6. Discuss the importance of legal research and writing skills to: a. Lawyers If defending a client in court, the courts would expect a certain degree and level of knowledge of the law in question. b. Courts

The courts also need a solid understanding of the law surrounding the issues and disputes that appear in their court. c. Clients Clients need to be able to understand the law surrounding their case and know how the lawyer is dealing with it. Clients may also be asked to give statement, and some level of legal writing skills will be needed for this. LAW1600 Tutorial 2 1. Outline the primary sources of law in Australia. The primary sources of law are made up of Case Law, Statutes and Constitution. Case law is the decisions made by judges during cases in court. Statutes are the formal written laws enacted by the government. Constitution is the fundamental principles and law of the Australian government. 2. Describe how primary sources of law can be used when making legal arguments. Primary sources of law can be used as precedent in legal arguments to support the decision and also create future precedent for help in future cases. All primary sources of law can be referred to in court and used as legal authority in court. 3. Outline secondary sources of law. Secondary sources of Law include textbooks (dictionaries, glossaries, encyclopaedias), journals and electronic law databases. 4. Describe how secondary sources of law can be used when making legal arguments. Secondary sources of law cannot be used as legal authority in legal arguments, but as materials that comment on the law, they can be used to aid in the explanation of a certain topic of law. 5. Describe how legal research practices have changed over the last 25 years. Over the last 25 years, with the advancement of technology, the materials used in legal research have changed from mostly text and hard copy sources to online databases and journals. Legal research is now mostly made up of online databases full of cases and information on the law and journals written about the law. 6. Describe legal research practices, which make legal research a more environmentally sustainable activity. Now that legal research has made it’s way to a mostly online form, there is a decrease in the demand for texts and written journals. This means that there is no longer such a large requirement for paper.

LAW1600 –Tutorial 3 7. Explain the importance of court reports in a common law system of law. Court reports are extremely important in a common law system, as we need to be able to access reports of important decisions, so they need to be readily accessible. 8. Explain which parts of a judgment in a case are of most importance to lawyers. The ratio decidendi is the most important part of a judgement in a case. It is ‘the reason for the decision’, meaning it is an explanation from the judge explaining his decision and the reasons for it. Generally the ratio decidendi is binding on lower courts. The obiter dictum is also of some importance to lawyers, but not as important as the ratio decidendi. It means something said ‘by the way’, meaning that it is remarks that a judge has made in his judgement that are not crucial to his judgement but the judge feels that it is noteworthy to mention them. The obiter dictum is not binding, but can be persuasive.

9. Explain step by step how you would go about finding a case using electronic research techniques. Finding cases on a certain topic  Pick a topic  Search for cases on this topic in an electronic database such as austlii or lexis nexis using keywords such as “assault” or “grievous bodily harm”  This will give a list of cases mentioning these key words Finding particular cases  Find a particular case name that you are looking for  Input the case name or keywords about the case name i.e. Donoghue, Stevenson, snail in the bottle, into an electronic database such as austlii or lexis nexis.  This will give you a list of possibilities involving this case name 10. Using an electronic legal research database, please find cases on the following topics a. A family law case regarding parenting orders;  Sinnott & Firth  AA v. BB  EJK & TSL  Hugh & Sawer and Anor  Aldridge & Keaton

b. A criminal law case regarding common assault; and  Quirk v. Steginga  R v. Abboud  Smith v. O’Neil  Police v. TCB c. A property law case regarding indefeasibility of title.  Mark Anthony Conlan (As Liquidator of Oakleigh Acquisitions Pty Ltd) & Ors v Registrar of Titles & Ors  HL (QLD) Nominees Pty Ltd v Jobera Pty Ltd & Anor  White v Tomasel & Anor

LAW1600 - Tutorial 4 11. Explain where statute law obtains its legal authority. Statute Law obtains its legal authority from the Commonwealth Constitution and is enacted by the state or federal parliaments. 12. Outline, which Parliaments have the power to make statute law in Australia. The State, Territory and Federal parliaments have the power to make statute law in Australia. 13. Explain the difference between Commonwealth legislation, State legislation, and Territory legislation. Commonwealth Legislation is related to laws that apply to the whole of Australia and has precedent over state legislation, whereas, State and Territory legislation applies to that particular state and territory. 14. Read the Civil Liability Act 2002 (WA) and answer the following questions: a) What is the purpose of this statute? The Civil Liability Act related to the various aspects of civil liability, to restrict the advertisement of legal services relating to personal injury, to restrict touting and for related purposes. b) What date did this statute come into force? Sections 1 and 2 came into effect on the 20th of November 2002 and the other aspects of the act came into effect on the 1st of January 2003. c) What are the operative sections of this statute? Part 1A - Liability for harm cause by the fault of a person Part 1B - Mental harm Part 1C - Liability relating to public function Part 1D - Good Samaritans Part 1E – Apologies Part 1F - Proportional liability Part 2 - Awards of personal injury damages Part 3 - Advertising legal services relating to personal injury and touting

Part 4 - Other matters Notes Defined Terms 15. Explain step by step how you would go about finding a statute using electronic research techniques. i. Search Commlaw ii. Click on Acts iii. All acts from A to C will appear iv. Click on the letter for the act that you are looking for – All acts with this letter will appear v. Click on the act that you are looking for 6. Using an electronic legal research database, please find statutes on the following topics: a) Family law, particularly, regarding parenting orders;  Family Law Amendment (Shared Parental Responsibility) Bill 2005  Parental Support and Responsibility Bill 2005 b) Criminal law, particularly, regarding common assault; and  Evidence Act 1906 c) Property law, particularly regarding indefeasibility of title.  Electronic Conveyancing (National Uniform Legislation) Act 2013  Real Property Act 1886

LAW1600 Tutorial 5 16. Outline the most commonly used secondary sources of law used by lawyers. Case notes, Hansard, Reports and Debates, Legal Dictionaries and encyclopaedias, Legal Textbooks, Academic journal articles and looseleaf services 17. Reflect on, rather than list, 5 criteria that can be used to evaluate the usefulness of a resource such as a book, journal article, conference paper, report etc for academic research. i. Currency 1. The information is not dated and contains all relevant and up to date information ii. Relevance 1. The information is relevant to the topic/area iii. Authority 1. The authority of the source is more important. 2. Some textbooks are held in higher authority that others, and would have more authority then say, a newspaper article 3. Peer reviewed sources may also not be of such high authority

iv.

v.

Content 1. Does the source actually provide any valuable information Scope 1. Start with sources covering a large scope/area, then delve into more detailed and narrow sources

18. Hypothetical: You have been asked to write an essay on the doctrine of indefeasibility within property law. Find secondary sources of law regarding this topic, including 5 text books, and 20 journal articles.  Textbooks 1) Australian Principles of Property Law by Samantha Hepburn 2) Australian Real Property Law by Adrian Bradbrook 3) Aspects of Real Property and Insolvency Law by Julie Dodds Streeton and Rosemary Langford 4) Exploring Private Law by Elise Bant and Matthew Harding 5) Real Property by Geoffrey Moore  Journal Articles 1) Indefeasibility of land titles in Western Australia and West Malaysia: A comparative study by Muh Rong Wong 2) Qualified Indefeasibility and the Careless Mortgagee by Michelle Backstrom and Sharon Christensen 3) Possession, Indefeasibility and Human Rights by Lynden Griggs 4) Indefeasibility of Torrens Title by W Harrison 5) Judicial Acceptance of Immediate Indefeasibility in Victoria by Jenny Schultz 6) Mortgages, indefeasibility and personal covenants to pay by Jeremy Stoljar 7) Indefeasibility of title to land by H Birch 8) Indefeasibility and Actions in Personam by R Gyles 9) Indefeasibility and sleights of hand by Peter Butt 10)Indefeasibility and overriding statutes: An attempted solution by Brendan Edgeworth

LAW1600 Legal Writing & Research Tutorial 6 19. Read the attached journal article and identify which parts of the referencing do not comply with the rules contained in the Australian Guide to Legal Citation 20. In doing so, identify: a. What rules of the AGLC have not been complied with; and b. What the AGLC compliant reference would be The position of footnote numbers

  

Footnotes should appear after the relevant information, after any punctuation. Shown by footnote 1, 4 and 13. Should be shown as: o Victorian Railways Commissioners v Coultas, 1 o Dulieu v White & Sons, 4 o HMAS Voyager and HMAS Melbourne. 13

Multiple References  Multiple references in the one footnote should be separated by a semi colon not the word ‘and’ as shown in footnote 11  Should be shown as: o See McFarlane v EE Caledonia Ltd [1994] 2 All ER 1; Hegarty v EE Caledonia Ltd [1997]. Case Names  Case names should be in italics  Shown by footnote 11 and 63  Should be shown as: o See McFarlane v EE Caledonia Ltd [1994] 2 All ER 1; Hegarty v EE Caledonia Ltd [1997]. Pinpoints  Should not use pp or page to reference an exact page number  Should just have the page number with the paragraph in square brackets if it applies  As shown by footnote 15  Should be shown as: o See N J Mullany and P R Handford, Tort Liability for Psychiatric Damage (The Law Book Co, Sydney, 1993), at pp 297-307; and D B Dobbs, The Law of Torts (West Group, St Paul, Minn, 2000), 821-835. Tutorial 9 Essay Questions: 1. Criminal penalties for white-collar corporate crime should be increased in order to be more in harmony with the public’s perceptions of guilt. Please critically evaluate this statement. Type of Essay: Prescriptive Type of Arguments: Inductive Type of Evidence:  Legislation  Statistical (Surveys of public perceptions in regards to white collar/blue collar crimes, Statistics on the impact of an increase in incarcerations)  Journal Articles Structure:  Introduction o Define white collar crime

   

o General information about the topic Body 1 o Evidence regarding current penalties Body 2 o Evidence regarding perceptions of guilt Body 3 o Evidence regarding impact of an increase in criminal penalties Conclusion o Final conclusion on the sub-issues presented

2. To say that a mining lease granted pursuant to the Mining Act 1978 (WA) has all the hallmarks of a true proprietary right akin to a lease granted pursuant to the Torrens legislation is to fundamentally misunderstand the nature of a lease granted pursuant to the Mining Act 1978 (WA) and the legal rights and interests to which, in a given case, it may be subject. Please critically evaluate the accuracy of this statement, referring to relevant legislation, case law and academic commentary. Type of Essay: Descriptive Type of Arguments: Inductive Type of Evidence:  Legislation  Case law  Journal Articles Structure:  Introduction o General information about the topic o Choose a stance on the topic and state this  Body 1 o Nature of land tenure  Body 2 o Legal rights from the relevant statutes  Conclusion o Final conclusion on the sub-issues presented

Tutorial 10 Write a legal letter to a client, using Plain English drafting principles.

No research of the law is required. Your letter is to be based on the instructions in the File Note and the extract from the Hammell Partners Architects partnership agreement. QUESTION You are a junior solicitor working for a large commercial law firm. One morning you receive the following memo on your desk from your supervising solicitor. FILE NOTE File: Hammell Partners Architects Ref: 002513 Subject: Effect of charge on partnership Date: 10 October 2013 Dear junior solicitor, I met with James Hammill yesterday morning, who is a partner in Hammell Partners Architects. He told me that one of the other partners in Hammell Partners Architects, Dave Feeny, has recently incurred large personal debts, due mainly to a severe gambling problem. In doing this, Mr Feeny has given his debtors a charge over his share in the partnership, and the remaining partners are very concerned about the effect of this on the future of the partnership. Our client Mr Hammell provided me with a copy of the Hammell Partners Architects partnership agreement which sets out the terms of the partnership. This agreement was drafted many years ago by another law firm, and it appears that clause 18 of the agreement may apply in this situation. However, Mr Hammell is having difficulty in understanding the full meaning of clause 18. Can you please write a letter of advice to our client Mr Hammell outlining the meaning of clause 18 of the Hammell Partners Architects partnership agreement, and its effect on the circumstances in this case. Please be as succinct as possible, making your letter a maximum of one page. I have attached clause 18 of the Hammell Partners Architects partnership agreement to this memo for your convenience. BP Assignment or encumbrance 18. If any partner shall assign, charge or encumber his or her share in the partnership or any part of it other than with the consent of the other partners and any authority whose consent is required or shall suffer the same to be charged for his or her separate debt under the Partnership Act or shall become bankrupt or insane or otherwise permanently incapable of attending to the partnership business or to

be entitled to practice as a partner or shall act in any manner inconsistent with the good faith observable between partners or shall be guilty of any conduct which would be a ground for dissolution of the partnership by the court then and in any such case it will be lawful for the other partners by notice in writing to the offending or incapacitated partner to determine the partnership so far as concerns such partner whereupon the interest of such offending or incapacitated partner in the partnership shall cease and the provisions regarding determination of the partnership contained in this agreement shall apply mutatis mutandis.

Dear Mr Hammell HAMMELL PARTNERS ARCHITECTS PARTNERSHIP AGREEMENT CLAUSE 18 1. Clause 18 of your partnership agreement provides the way ahead if one of the partners is no longer able to properly meet their obligations as a partner. It also applies if one of the partners becomes bankrupt or becomes incapacitated to the point where they are unable to fulfil their responsibilities as a partner for any reason. 2. In this case clause 18 provides that if one of your partners, in this instance Mr Feeny, hands over control of their partnership share to another body without the consent of the partners, you and the other partners may dissolve his share in the partnership. 3. To implement clause 18, you and your partners will need to advise Mr Feeny in writing that you are dissolving his share in the partnership, outlining that his handing over charge of his partnership share to his debtors is contrary to clause 18 of your partnership agreement. 4. Please note that clause 18 also provides that this action does not alter the overall partnership agreement in any other way; it only removes Mr Feeny’s interest in the partnership. Yours sincerely Cam McDonald

13 May 2014

Dear James PARTNERSHIP AGREEMENT MATTER OUR REF 002513 I refer to your meeting for legal advice with Brendon Palmer on 12 May 2014 in relation to your partnership agreement matter. You advised that one of the partners of Hammell Partners Architects (“HPA”) has recently incurred large personal debts and as a result has given his debtors a charge in his share of the partnership. You have sought advice as to the effect of this on the future of the partnership. Instructions I confirm you gave the following instructions: (i) You and Dave Feeny are both partners in HPA. (ii) Dave Feeny has recently incurred large personal debts mainly due to gambling. (iii) Dave Feeny has given his debtors a charge in his share of the partnership in HPA. (iv) The partnership is subject to terms of agreement. You have provided a copy of this document. (v) You are unsure of the application of clause 18 and seek advice clarifying its meaning and effect on the circumstances in this matter. Advice Clause 18 stipulates that a partner cannot grant their share of the partnership without the consent of the other partners and doing so is grounds for removal of the partnership. To effect the removal of the partnership, the other partners are required to provide written notice to the offending partner advising that their actions have resulted in termination of the partnership. Should you have any questions please contact me on 9123 4567 or [email protected]. Yours sincerely Julia Kurowski Junior Solicitor SW Legal

Dear Mr Hammel,

Partnership agreement – clause 18

We refer to your appointment for legal advice on 09 October 2013.

You advised that Mr Feeny a partner in your firm has passed charge of his share over to the control of a debtor and you seek adv...