Legal Problem Legal Problem QuestionsQuestions

3. Using the relevant 3. Using the relevant lawlaw

An answer to a An answer to a legal problem legal problem question without question without sufficient reference sufficient reference to the law is to the law is incomplete.incomplete.

Starting pointStarting point

Identify issue

Identify relevant law

Apply law to facts

Having identified the issues raised by the problem, the next step is to identify the relevant law you will use to solve the problem.

How?How?

Typically, identifying the issues will Typically, identifying the issues will suggest the relevant law to be used suggest the relevant law to be used to solve those issues.to solve those issues.

Consider the following example we Consider the following example we used in Workshop Two, where we used in Workshop Two, where we identified the issues raised in a identified the issues raised in a problem question.problem question.

Alice runs a small stationery business specialising in Alice runs a small stationery business specialising in wedding invitations. Her wedding invitations. Her husbandhusband John owns a large John owns a large printing business, and because he buys such a large printing business, and because he buys such a large volume of paper, he is able to purchase his paper much volume of paper, he is able to purchase his paper much more cheaply than Alice. On Thursday night, more cheaply than Alice. On Thursday night, after after cooking John’s favourite mealcooking John’s favourite meal, Alice asked John if he , Alice asked John if he would supply her business with paper at his cost price. would supply her business with paper at his cost price. John said, “John said, “Of course honey. Whatever would make you Of course honey. Whatever would make you happy.” happy.” Alice then decides to invest in specialist inks. On Friday Alice then decides to invest in specialist inks. On Friday she rings her supplier at Mary’s Inks Pty Ltd and talks to she rings her supplier at Mary’s Inks Pty Ltd and talks to Mary. She discusses her plans to expand her wedding Mary. She discusses her plans to expand her wedding invitation business into programmes and place cards, invitation business into programmes and place cards, which means she will need to order additional ink which means she will need to order additional ink colours, and colours, and ink which is suitable forink which is suitable for printing photos and printing photos and graphicsgraphics. Mary tells Alice that all the ink they supply is of . Mary tells Alice that all the ink they supply is of the highest quality. the highest quality. Alice orders 2 dozen blackAlice orders 2 dozen black ink ink cartridges at the list price of $30.00 each, to be deliveredcartridges at the list price of $30.00 each, to be delivered next Fridaynext Friday. She . She alsoalso inquires inquires about gold and silver inks, about gold and silver inks, and is told that and is told that gold cartridges are available for $80.00 gold cartridges are available for $80.00 eacheach, and , and silver for $75.00silver for $75.00. Alice is unhappy with these . Alice is unhappy with these prices, and considers that as a long standing customer, prices, and considers that as a long standing customer, she should receive a better price. she should receive a better price. She tells Mary that she She tells Mary that she is prepared to pay $60.00 for the gold cartridges and is prepared to pay $60.00 for the gold cartridges and $50.00 for the silver$50.00 for the silver. Mary is . Mary is unsure unsure whether or not whether or not these prices are acceptable.these prices are acceptable.

Alice tells her to think about, and that Alice tells her to think about, and that if she doesn’t hear if she doesn’t hear to theto the contrary,contrary, she will take 5 gold and 5 silver she will take 5 gold and 5 silver cartridges, to be delivered with the black ink cartridges on cartridges, to be delivered with the black ink cartridges on Friday.Friday.On Friday morning, Alice receives a delivery from Mary – On Friday morning, Alice receives a delivery from Mary – of 24 black ink cartridges but no colour cartridges. Alice of 24 black ink cartridges but no colour cartridges. Alice rings Mary, thanks her for the delivery of the black rings Mary, thanks her for the delivery of the black cartridges, but notes there are no gold or silver cartridges. cartridges, but notes there are no gold or silver cartridges. Mary advises that she has decided not to supply them at Mary advises that she has decided not to supply them at Alice’s price – Alice protests that they had an agreement Alice’s price – Alice protests that they had an agreement about the coloured inks. Alice then rings John and asks about the coloured inks. Alice then rings John and asks him to send over some paper she needs – at cost price as him to send over some paper she needs – at cost price as agreed. John replies that he will certainly provide her with agreed. John replies that he will certainly provide her with paper, but that he needs to do so at market price. She paper, but that he needs to do so at market price. She protests and reminds him of last Thursday evening. He protests and reminds him of last Thursday evening. He replies “replies “Ah yes. That was dinner, this is businessAh yes. That was dinner, this is business.”.”After Alice gets off the ‘phone her assistant Peter shows After Alice gets off the ‘phone her assistant Peter shows her an order for wedding programmes on which he has her an order for wedding programmes on which he has been working, using the black ink supplied by Mary that been working, using the black ink supplied by Mary that day. The text was fine, day. The text was fine, but the photo of the bride and but the photo of the bride and groom has printed blotchygroom has printed blotchy and streakyand streaky. He tells Alice . He tells Alice there is a problem with the ink – it will not print photos there is a problem with the ink – it will not print photos properly. properly. Advise Alice.Advise Alice.

Issues raisedIssues raised

Her Her husbandhusband John John Alice and John are married. An Alice and John are married. An

important issue to discuss is intention important issue to discuss is intention to create legal relations.to create legal relations.

Having identified this issue, you will Having identified this issue, you will know that you have to consider the know that you have to consider the law of intention to create legal law of intention to create legal relations, any relevant rebuttable relations, any relevant rebuttable presumptions, and cases such as presumptions, and cases such as MerrittMerritt v v MerrittMerritt [1970] 2 All ER 760 [1970] 2 All ER 760

How will you know the relevant How will you know the relevant law?law?

We have previously said the first step in We have previously said the first step in legal problem solving is to have an legal problem solving is to have an understanding of the relevant legal understanding of the relevant legal area.area.

You need enough legal knowledge to You need enough legal knowledge to identify a starting point – an issue, and identify a starting point – an issue, and a relevant case or statute. a relevant case or statute.

You can begin any research from this You can begin any research from this point – but you can’t begin to answer a point – but you can’t begin to answer a question by researching the facts.question by researching the facts.

More issuesMore issues

ink which is suitable forink which is suitable for printing printing photos and graphicsphotos and graphics. . This discussion – about the purpose of This discussion – about the purpose of

the ink purchase - reminds us that the ink purchase - reminds us that legislation may imply a term into a legislation may imply a term into a contract that the goods be fit for thecontract that the goods be fit for the purpose for which they have been purpose for which they have been bought. bought.

Having identified this issue you will Having identified this issue you will know that you must consider the know that you must consider the Trade Trade Practices ActPractices Act 1974 1974 (Cth) and/or the (Cth) and/or the Sale Sale of Goods Act 1923of Goods Act 1923 (NSW) (NSW)

Consider:Consider:

How much of the legislation will you How much of the legislation will you need to consider?need to consider?

Is it enough to mention the Act?Is it enough to mention the Act? Or do you need to consider specific Or do you need to consider specific

section(s) of the Act?section(s) of the Act? If you are using legislation does this If you are using legislation does this

mean that case law will not be mean that case law will not be relevant?relevant?

Would you ever use case law Would you ever use case law andand legislation?legislation?

More issuesMore issues if she doesn’t hear to theif she doesn’t hear to the contrary,contrary, she will she will

take 5 gold and 5 silver cartridges, to be take 5 gold and 5 silver cartridges, to be delivered with the black ink cartridges on delivered with the black ink cartridges on Friday.Friday. Alice is suggesting acceptance by silenceAlice is suggesting acceptance by silence.. This raises the issue of how an offer may This raises the issue of how an offer may

be accepted. be accepted. Is it enough to discuss the principles Is it enough to discuss the principles

generally (eg communication) or do you generally (eg communication) or do you need to discuss specifics such as the rule need to discuss specifics such as the rule about silence discussed in about silence discussed in FelthouseFelthouse v v BindleyBindley (1862) 11 Cb (NS) 869? (1862) 11 Cb (NS) 869?

BUT, the issues don’t suggest BUT, the issues don’t suggest any relevant law to me……any relevant law to me……

If you are in the unfortunate position If you are in the unfortunate position where you can spot the issues, but where you can spot the issues, but cannot identify the necessary law, then cannot identify the necessary law, then check your text book or lecture notes check your text book or lecture notes for ideas and clues as to the relevant for ideas and clues as to the relevant law.law.

It is wise to review your text and notes It is wise to review your text and notes anyway to make sure you have anyway to make sure you have identified identified allall the relevant law. the relevant law.

How much law do I need?How much law do I need?

You have picked the issues raised You have picked the issues raised and identified the law you will use to and identified the law you will use to solve the problem.solve the problem.

How much ‘law’ do you need?How much ‘law’ do you need? Remember that legal problem Remember that legal problem

questions are different to legal questions are different to legal essays or journal articles.essays or journal articles.

Legal problemsLegal problems

A legal problem is not asking for a A legal problem is not asking for a theoretical discussion of the law – it theoretical discussion of the law – it requires the practical application of requires the practical application of legal principles to a set of given legal principles to a set of given facts.facts.

So….So…. A problem question does not require A problem question does not require

extensive hypothetical legal extensive hypothetical legal discussion.discussion.

Relevant lawRelevant law

A clear statement of the relevant law A clear statement of the relevant law is generally sufficient – supported by is generally sufficient – supported by relevant legal authorityrelevant legal authority

‘‘Relevant’ is important. Rather than Relevant’ is important. Rather than discussing all the law you know, you discussing all the law you know, you need to choose that which is relevant need to choose that which is relevant to the problem at hand – to the problem at hand – and only and only that which is relevant to the problem.that which is relevant to the problem.

Think about your legal knowledge as your wardrobe – full of clothes of different types

How much of your wardrobe will you pack for the special purpose of going on holidays?

How much law?How much law?

An answer to a legal problem does An answer to a legal problem does not use all your legal knowledge.not use all your legal knowledge.

It requires only that legal knowledge It requires only that legal knowledge which fits the special purpose of the which fits the special purpose of the problem.problem.

Specific legal knowledgeSpecific legal knowledge

Always think in terms of specifics:Always think in terms of specifics:

- not a general proposition or a - not a general proposition or a vague understanding, but a vague understanding, but a particular principle enunciated by a particular principle enunciated by a particular judge in a particular case;particular judge in a particular case;

- or, a named section of named - or, a named section of named legislation, the relevant elements of legislation, the relevant elements of which have been set out for which have been set out for discussion.discussion.

What law to use?What law to use?

The two primary sources of law in a The two primary sources of law in a common law system are:common law system are: CasesCases StatutesStatutes

Even though you may rely heavily on Even though you may rely heavily on your text or lecture notes these are your text or lecture notes these are not primary sources – and are no not primary sources – and are no replacement for a discussion of cases replacement for a discussion of cases and statutes.and statutes.

So, on what cases, or So, on what cases, or what sections of what sections of which statute (or which statute (or which combination of which combination of both) will you build both) will you build the answer to the the answer to the problem?problem?

Common errorsCommon errors

Students often mistake facts for law. They Students often mistake facts for law. They will set out the facts in detail and think that will set out the facts in detail and think that this answers the question. It does not.this answers the question. It does not.

They will set out the law in vague They will set out the law in vague generalities and think that this will answer generalities and think that this will answer the question. It does not. All it does is the question. It does not. All it does is indicate that the person in question has a indicate that the person in question has a vague and general understanding of the vague and general understanding of the law – which is not enough for practice and law – which is not enough for practice and will result in a fail.will result in a fail.

ExamplesExamplesConsider the difference between the Consider the difference between the following two examples:following two examples: It is clear from the cases that a collateral contract It is clear from the cases that a collateral contract

may co-exist with another contract and will be may co-exist with another contract and will be enforceable. Here, the collateral contract enforceable. Here, the collateral contract provides…provides…

OROR A collateral contract, apart from the general rules A collateral contract, apart from the general rules

of contract formation (especially consideration) of contract formation (especially consideration) requires the following two elements to be present:requires the following two elements to be present:

A statement of a promissory nature (JJSavage v Blakney) A statement of a promissory nature (JJSavage v Blakney) which is which is

Consistent with the main contract (Hoyts v Spencer). Consistent with the main contract (Hoyts v Spencer). Let us consider these in turn to determine if a Let us consider these in turn to determine if a

collateral contract is present here. collateral contract is present here.

Which example provided the Which example provided the strongest legal foundation to the strongest legal foundation to the argument?argument?

Which example demonstrated a Which example demonstrated a clear knowledge of the relevant clear knowledge of the relevant law?law?

Which example supported the law Which example supported the law with reference to relevant with reference to relevant authority?authority?

Did either example discuss the law Did either example discuss the law in detail?in detail?

State principles conciselyState principles concisely

The relevant legal principles should The relevant legal principles should be stated concisely and relevant be stated concisely and relevant authority provided.authority provided.

Where will you find this concise Where will you find this concise statement of legal principle?statement of legal principle?

CasesCases

From the case itself?From the case itself? No – but from the case note you have No – but from the case note you have

written summarising the casewritten summarising the case From the text book?From the text book?

Not alwaysNot always From lecture notes?From lecture notes?

Not alwaysNot always From the concise summary you have From the concise summary you have

prepared of the text, lectures and prepared of the text, lectures and case law.case law.

CasesCases

It is rarely necessary to discuss the It is rarely necessary to discuss the facts of a case or provide much detail facts of a case or provide much detail – all you need is a statement of legal – all you need is a statement of legal principle for which the case is principle for which the case is authorityauthority

Exceptions:Exceptions: When the facts of the question are very When the facts of the question are very

similar to the facts of a case, especially similar to the facts of a case, especially where a question may turn on the where a question may turn on the difference between the facts in the case, difference between the facts in the case, and the facts in the questionand the facts in the question

ExceptionsExceptions

Where the judgements differ, and Where the judgements differ, and offer differing views of the legal offer differing views of the legal principle in question, you should principle in question, you should discuss each of the judgements (or discuss each of the judgements (or the majority and minority) and the majority and minority) and consider how the differing consider how the differing understandings of the legal principles understandings of the legal principles could result in different outcomes in could result in different outcomes in the present case.the present case.

StatuteStatute

From the legislation itself?From the legislation itself? Yes – the relevant section will be a Yes – the relevant section will be a

concise statement of the law.concise statement of the law. However, each section normally However, each section normally

contains a number of different legal contains a number of different legal principles or elements – all of which principles or elements – all of which have to be considered individually, have to be considered individually, and then their collective effect and then their collective effect assessed.assessed.

Textbooks?Textbooks?

As you are reading cases consider As you are reading cases consider how often – or how infrequently – the how often – or how infrequently – the judges refer to text books.judges refer to text books.

Text books are a secondary source. Text books are a secondary source. They are never as useful or as They are never as useful or as authoritative as the primary sources authoritative as the primary sources they discuss – cases and statutes – they discuss – cases and statutes – and should be used sparingly, if at and should be used sparingly, if at all.all.

Other sources?Other sources?

Are nutshells, lecture notes or Are nutshells, lecture notes or Wikipaedia good sources of law?Wikipaedia good sources of law?

They may be where you first learnt of They may be where you first learnt of the principles under discussion, but the principles under discussion, but they are not authoritative sources.they are not authoritative sources.

Wikipaedia is a blog – nothing more, Wikipaedia is a blog – nothing more, nothing less. It is never an nothing less. It is never an authoritative source.authoritative source.

But in practice?But in practice?

You may be familiar with examples of You may be familiar with examples of legal problem solving – eg letters of legal problem solving – eg letters of advice to clients – which do not advice to clients – which do not support their conclusions by support their conclusions by reference to the relevant law.reference to the relevant law.

Style will differ from practice to Style will differ from practice to practice. Some may decide that a practice. Some may decide that a discussion of the relevant law will discussion of the relevant law will only confuse clients.only confuse clients.

ClientsClients

Clients will assume you have Clients will assume you have relevant legal knowledge – they will relevant legal knowledge – they will not need you to demonstrate this.not need you to demonstrate this.

In any studies leading to a In any studies leading to a professional qualification however, professional qualification however, you must demonstrate that you you must demonstrate that you understand and can identify the law understand and can identify the law on which your conclusions are based.on which your conclusions are based.

Consider:Consider:

What is important about a case or What is important about a case or statute?statute?

Is it the case name?Is it the case name? Or is it the legal principle which has Or is it the legal principle which has

become a binding part of our law because become a binding part of our law because of the decision in that case?of the decision in that case?

Is it the section number?Is it the section number? Or is it the legal principle which has Or is it the legal principle which has

become a binding part of our law because become a binding part of our law because of the enactment of that section?of the enactment of that section?

It is always the legal It is always the legal principle which is most principle which is most

important. The source of important. The source of that legal principle (eg that legal principle (eg

case name) is important case name) is important to support that principle – to support that principle – but it can never replace but it can never replace

it.it.

So……So……

A list of case names is NOT a A list of case names is NOT a statement of the relevant law.statement of the relevant law.

A list of statutes, or sections, is NOT A list of statutes, or sections, is NOT a statement of the relevant law.a statement of the relevant law.

These are statements of authorities – These are statements of authorities – NOT law.NOT law.

Example OneExample OneLawLaw Telstra Corporation v Treloar Telstra Corporation v Treloar (2000) 102 FCR 595(2000) 102 FCR 595 Lipohar v R (1999) Lipohar v R (1999) 200 CLR 485200 CLR 485 Viro v R Viro v R (1978) 141 CLR 88(1978) 141 CLR 88 Cole v Cunningham Cole v Cunningham (1983) 49 ALR 123(1983) 49 ALR 123 Smith v River Douglas Catchment Board Smith v River Douglas Catchment Board [1949] 2KB 500[1949] 2KB 500 Engineers’ case (Amalgamated Society of Engineers v Adelaide Steamship Engineers’ case (Amalgamated Society of Engineers v Adelaide Steamship

(1920) 28(1920) 28 CLR 129) CLR 129) Project Blue Sky Inc v Australian Broadcasting Authority Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355(1998) 194 CLR 355 Grey v Pearson Grey v Pearson (1857) 6HL Cas 61(1857) 6HL Cas 61 Adler v George Adler v George [1964] 2 QB 7[1964] 2 QB 7 Heydon’s case Heydon’s case (1584) 3 Co Rep 7a at 7b(1584) 3 Co Rep 7a at 7b Avel Pty Ltd v Attorney-General for NSW (1987) 11 NSWLR 126 Avel Pty Ltd v Attorney-General for NSW (1987) 11 NSWLR 126 Mills v Meeking (1990) 169 CLR 214Mills v Meeking (1990) 169 CLR 214 R v L (1994) 49FCR 543R v L (1994) 49FCR 543 Bermingham v Corrective Services Commission of New South Wales (1988) Bermingham v Corrective Services Commission of New South Wales (1988)

15NSWLR 292 15NSWLR 292 R v Young (1999) 46 NSWLR 681,R v Young (1999) 46 NSWLR 681, Wacando v Commonwealth of Australia and the State of Queensland (1981) Wacando v Commonwealth of Australia and the State of Queensland (1981)

148 CLR1148 CLR1 Commissioner of Taxation (Cth) v Whitfords Beach Pty Ltd (1982) 150 CLR Commissioner of Taxation (Cth) v Whitfords Beach Pty Ltd (1982) 150 CLR

355 355 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

Example TwoExample TwoLawLaw

The issue here requires us to interpret the The issue here requires us to interpret the statute according to relevant statutory and statute according to relevant statutory and common law principles. The traditional common law principles. The traditional purpose approach, discussed in purpose approach, discussed in Heydon’s Heydon’s case case (1584) 3 Co Rep 7a at 7b is reflected (1584) 3 Co Rep 7a at 7b is reflected in modern statutory approaches, although in modern statutory approaches, although the High Court reminds us in the High Court reminds us in Project Blue Project Blue Sky Inc v Australian Broadcasting Authority Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 that a number of (1998) 194 CLR 355 that a number of approaches are available to us, and may approaches are available to us, and may be required.be required.

Consider:Consider:

Which example provides ‘more’ law?Which example provides ‘more’ law? Which example provides the clearest Which example provides the clearest

discussion of legal principle?discussion of legal principle? Which example demonstrates an Which example demonstrates an

understanding of the law?understanding of the law? Which example shows the ability to Which example shows the ability to

select the legal principles relevant to select the legal principles relevant to the question?the question?

SummarySummary

A legal problem question is A legal problem question is unfinished if it only discusses the unfinished if it only discusses the facts – it must discuss the relevant facts – it must discuss the relevant law.law.

The relevant law will be that part of The relevant law will be that part of your entire legal knowledge needed your entire legal knowledge needed to answer the question.to answer the question.

A relevant legal discussion will be A relevant legal discussion will be specific rather than general. specific rather than general.

SummarySummary

A relevant legal discussion will be A relevant legal discussion will be well supported by relevant primary well supported by relevant primary authorities – case law and statute.authorities – case law and statute.

But simply listing the names of cases But simply listing the names of cases and statutes is not providing a and statutes is not providing a statement of the relevant law.statement of the relevant law.

A good answer will be based on the A good answer will be based on the relevant legal principles.relevant legal principles.