Monday, 8 June 2009

Helpful hints and links

Answering a Constitutional question

1. Read the question
Carefully read the rubric to define precisely what the assessor wants. This is usually to be found at the end of the problem scenario and consists of 'Advise Mr and Mrs X' or the curt 'Discuss', a command that can be interpreted to mean 'advise all the parties referred to'. If you are asked to advise Mr and Mrs X then you need only consider their position and should not waste time by referring to the position of other parties mentioned in the problem scenario.
Occasionally, you may be asked to concentrate, or even avoid, just one aspect of the law, for example, 'address/avoid the issues of natural justice which arise in this problem'. Always be wary of a 'sting in the tail' of the question which might add a new element to the facts of the problem, for example, 'Would your answer be different if the decision-making body was not a public body?'

2. Read the scenario
It is important to read through the whole scenario in order to gain an overview of the issues raised. Once you have a general feel for the problem, you can turn to the specific sentences to see what issues of law arise. If you are asked in the rubric to advise more than one party, then read through the problem scenario again looking for the specific issues which relate to the particular party in question.
It is worth remembering that problem scenarios involving judicial review traditionally require the formulation of grounds for making the application for judicial review, from the facts given in the problem scenario, whilst problem scenarios involving civil liberties traditionally require reference to statutory powers and procedures. If the information you have received from the assessor is incomplete or ambiguous, then it is your responsibility to identify it as such and utilise that fact in your legal reasoning.

3. Identify the relevant legal issues
In formulating your advice for a judicial review problem question, you might work from the following checklist to identify all the relevant issues:
A) Identify the 'decision or action' which is to be challenged
B) Consider whether the body making that decision is a public body and/or whether it is the type of decision against which a challenge can be made
C) Moving on to the grounds of the application, has the decision-making body acted beyond its powers, in that it had no jurisdiction to make the decision or otherwise acted with illegality?
D) Has that decision-making body abused its powers, in the sense that it has acted with procedural impropriety or irrationality?
E) What will be the appropriate procedure to use when making the application - noting the inherent issues of locus standi, leave and delay contained within the Order 53 procedure?
F) What remedy is it that the party you are asked to advise should seek, namely a public law remedy and/or a private law remedy of declaration, injunction or damages? Your answer to this is likely to be of primary importance to the party you are advising.

Answering a Tort question

1. Identify the duty (Capara v Dickman only needs to be used when a duty is not established)
2. Identify whether the duty has been breached (A. Note the standard and B. see if they breached it)
3. See whether there is causation (Either factual, the 'but for' test; or legal, whether the chain of causation has been broken by a novus actus interveniens)
4. Assess remoteness (was the type of damage caused reasonably foreseeable under Wagon Mound II?)
5. See what damages (if any) are owed.

How to answer a constitutional question
A useful explanation of the government and Parliament
Some notes on politics
Online resource for Constitutional and Administrative Law
Law Express
More Constitutional and Administrative Law
Judicial Review

Law of Contract Summarised
Australian Contract Law resource page

Land law information

Simple Tort summary
Model answers to some Tort problems
Negligence answer model
Selected excerpts from Tort Q&A

Acts and Statutes list
Case law search
List of Pearson Law companion websites
Electric Law Library
Free 'Unlocking the Law' model answers and multiple choice questions
American 'First Year Law Review' blog
Mike Shecket Law Notes
Oxford University Press online resources for Law

No comments: