Law research plan
Microsoft Word - LAW 480 Module I, Assignment 1.1, Trimester 2, 2020 ver 1.3.docx Page 1 of 2 School of Law University of New England Armidale NSW 2351 Australia Phone 61 2 6773 3598 Fax 61 2 6773 2580 http://askune.custhelp.com/ www.une.edu.au/law LAW 480 – Remedies and Advanced Professional Skills Assignment 1.1 (Module I) – Trimester 2, 2020 Due Date: 11:59pm UNE time Sunday 26 July 2020 Students must answer all of the six research questions listed below. Questions 1-5 are each worth 10 marks. Question 6 is worth 15 marks. An additional 5 marks are allocated to referencing and bibliography. Thus, the assignment will be marked out of 70 and then converted to a mark out of 20 (rounded to the nearest half-mark). The word limit is strictly 3000 words, excluding any questions, headings, footnotes and bibliography. In presenting their answers, students must: (i) give an outline of their research plan (ii) explain the steps taken to find the relevant law (iii) identify when and how any relevant statute law(s) came into force (iv) reference their work according to the Australian Guide to Legal Citation (Melbourne University Law Review Association Inc, 4th ed, 2018) and include a bibliography (v) include legal authority for all propositions of law using pinpoint references (vi) comply with the marking criteria and guidance contained in the unit Supplementary Material. Research questions: 1. Answer both of: (a) Explain the use of the expression ‘without prejudice’; and (b) What is the origin and purpose of a Calderbank letter? [10 Marks] 2. What is the ‘autochthonous expedient’? Cite primary authority for the term and the legislation (including the relevant sections) which make the expedient work. [10 Marks] 3. Nominate and explain a statute from each of the following: (a) New South Wales; (b) any other Australian state; and (c) an Australian Territory which might permit a testator to appoint a guardian for their child. [10 Marks] Page 2 of 2 v1.3 4. Answer both of: (a) What is the limitation period for a claim for loss or damage on board a ship caused by another ship; and (b) Is an extension to the limitation available? Refer to both Commonwealth and NSW law in your answer. [10 Marks] 5. Find and briefly explain the latest case in which the High Court of Australia examined the equitable remedy of account of profits. [10 Marks] 6. Discuss the mechanism by which treaties and conventions may become Australian law by comparing the implementation (if any) in Australia of: (a) the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation; and (b) the Convention for the Unification of Certain Rules for International Carriage by Air. [15 Marks] Adam Edwards 22 June 2020 Mod I Lecturer Microsoft Word - Assessment 1- Final.docx Jenna Rich LS480 Assignment 1 1 Jenna Rich 220097710 Advanced Research, Writing and Advocacy – Assessment 1 Words: 2099 (excluding questions) Th in ks wa p Do cu m en t Jenna Rich LS480 Assignment 1 2 Note to Marker: Assent, amendments, commencement, purpose of Acts are listed in Appendix 1. 1. Plan: Steps: • From the textbook ‘Administrative Law’, I recalled that privative clauses are provisions included in legislation to limit the scope of judicial review.1 • I defined ‘Act of Parliament’ using a legal dictionary, as a bill, which has passed all three readings and has been given the royal assent, and incorporated as a law.2 • I used the example from the text as a starting point in my research. This was The Migration Act3. • As the Migration Act is a Commonwealth law, I used Comlaw and searched for ‘Migration Act’ in the advanced search option. • As the text referred me to s 474, I searched for this section and discovered that the Act did contain a privative clause. This stated, “Decisions under the act are final”.4 • I then went to the definitions section and found that ‘Privative Clause’ was defined as an administrative decision made under the act, which are final and conclusive, and may not be “challenged, appealed against, reviewed, quashed or called into question”.5 • I then used ‘note up’ in Austlii and found the case of Plaintiff S157.6 In this case, the HCA examined the potential conflict between s 474 of the Migration Act and s 75 of the Constitution.7 The majority held that the constitutional jurisdiction of the High Court couldn’t be compromised by a privative clause8 and thus s 474 could not apply in relation to jurisdictional error.9 1 Douglas & Jones, Douglas and Jones’s Administrative Law (Federal Press, Australia 2008). 2 Butt, Peter, Lexis Nexis Concise Australian Legal Dictionary (Lexisnexis Butterworths, Australia 2008) p 12. 3 Migration Act 1958 (Cth). 4 Ibid s 474. 5 Migration Act 1958 (Cth) s 474 (2). 6 Plaintiff S157/2002 v Commonwealth [2003] HCA 2. 7 Commonwealth of Australia Constitution Act 1900 s 51. 8 Plaintiff S157/2002 v Commonwealth [2003] HCA 2 [5]. 9 Ibid [121]. Locate Relevant Textbook: Background Understanding Google Search: Keywords "Privative Clauses Australia" Comlaw/AustLII: Relevance, assent, commencement, current. 'Note up" : Attached case law Combine to answer question Th in ks wa p Do cu m en t Jenna Rich LS480 Assignment 1 3 • I used Austlii “This phrase”, “All legislation” with keywords “may not be appealed against”, “quashed”. This returned the result Industrial Relations Act10. I then used “search this Act” with the same key words, and located s 179 which states that decisions of the commission are final, and may not be appealed against, reviewed, or called into question.11 The definitions section of the Act provides that ‘decision’ includes any award or order made.12 2. Plan: Steps: • Using a tax law textbook13 I deciphered that ‘carrying on a business for the purpose of earning assessable income’ was a stipulation of the Income Tax Assessment Act14. • I used Austlii to locate the Act, and “Search this act: earning assessable income” to determine that this provision was located in s 8-‐1 of the Act, under ‘General Deductions’15. • I used ‘noteup’ to find cases containing this section of legislation. • I refined the search by ordering results based on ‘date’ and using the “By Database – High Court of Australia” parameter. • This returned the result of Spriggs v Federal Commissioner16. • I then checked ‘noteup’ to see if this case had been more recently referred to, which it had in Anstis17, however this decision did not specifically relate to carrying on a business for the purpose of earning assessable income. 3. Plan: 10 Industrial Relations Act 1996 (NSW). 11 Ibid s 179. 12 Ibid. 13 Woellner, Barkoczy, Murphy and Evans, 2014 Australian Taxation Law (CCH, 24th edition, Australia, 2014). 14 Income Tax Assessment Act 1997 (Cth). 15 Income Tax Assessment Act 1997 (Cth) s 8-‐1. 16 Spriggs v Federal Commissioner of Taxation and Riddel v Commissioner of Taxation [2009] HCA 22. 17 Commissioner of Taxation v Anstis [2010] HCA 183. Locate Relevant Textbook: Background Understanding Google Search: Keywords "Earning Assessable Income, Carrying on Business" Comlaw/ AustLII: Relevance, assent, commencement, current. 'Note up" : Attached case law Combine to answer question Th in ks wa p Do cu m en t Jenna Rich LS480 Assignment 1 4 Steps: • Using a broad Google search with keywords “Personal Property Securities Australia” I determined that security of personal property is dealt with under the Personal Property Securites Act18. • I found this Act using Comlaw and determined that it was introduced to simplify and unify management of personal property security interests. • I used a “NSW HANDSARD” search, using key words “Personal Property Securities NSW”. Through this, I located the PPS (Commonwealth Powers) Act19. • I used a NSW Legislation search to determine that the act was created to refer certain matters of security interests in personal property to the Commonwealth Parliament20. Therefore, this is the NSW act which enables the PPSA. • I then located the Second Reading Speech of the Bill, which confirmed that the Act was created through discussion with all Australian jurisdictions, to