Faculty of Business, Economics and

Law

School of Law

Legal Institutions and Methods

LAW1LIM

Subject Learning Guide

Semester 1, 2013

Bundoora/Bendigo

Subject coordinator:
Judy Gutman

Teaching staff:
Judy Gutman, Tim Greenall, Marc Trabsky, Pascale
Chifflet, Bianca Genziuk, Dennis Warren (Bundoora)
Tobias Barkley (Bendigo)
1. Subject information at a glance 3

2. Subject description 6

3. Learning and assessment 6

4. Teaching arrangements 33

5. Learning resources 36

6. Feedback and Quality Assurance processes 40

7. Learning effectively in this Subject 41

8. Lecture & Seminar Outlines, Readings & Seminar Questions 44

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 1. Subject information at a glance

Academic staff-Bundoora
Judy Gutman
Martin Building Room 263; tel 9479 1563
Email: [email protected]
Consultation: Wednesdays 11am-1pm
Tim Greenall
Martin Building Room 289; tel 9479 2762
Email: [email protected]
Consultation: Mondays 12 noon -1pm
Marc Trabsky
Martin Building Room 251; tel 9479 2739
Email: m. [email protected]
Consultation: Wednesdays 4-5pm
Pascale Chifflet
Martin Building Room 248; tel 9479 2697
Email: [email protected]
Consultation: Tuesdays 11am-12 noon
Bianca Genziuk
Martin Building Room 229A
Email: [email protected]
Contacts & Consultation: TBA

Academic staff-Bendigo
Tobias Barkley
Contacts & Consultation: TBA

Enrolment Assumed entry skills and knowledge:

requirements: o that students have a high level of competency in
15 credit point subject written expression (punctuation, grammar, spelling,
Current enrolment in syntax, etc) and are competent in oral
Bachelor of Laws. communication skills
o that students are able to take responsibility for their
own learning
While it is expected that students will have a general
grounding of the major governing institutions in
Australia, no specific legal knowledge is assumed.

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Delivery mode and location (Bundoora):
Lectures weekly, held Wednesday 10-11 am Eastern Lecture Theatre Five
(ELT 5) Bundoora Campus with video conferencing in ELT 2
2-hour weekly seminars at Bundoora campus, beginning Week 2.
Please see online timetable for Bendigo times and location

Bundoora students should enrol online via OASIS in one of the following 11
seminars offered at the Bundoora campus:
Monday 10-12noon Menzies Coll Sem 3 TIM
Tuesday 11-1pm MB 243 MARC
Tuesday 1-3pm HU3 410 MARC
Tuesday 1-3pm DME 329 PASCALE
Wednesday 11-1pm MB 466 PASCALE
Wednesday 12-2pm Glenn Coll Oates Room BIANCA
Wednesday 12-2pm HU2 403 MARC
Wednesday 1-3pm Glen Coll Sem 6 PASCALE
Wednesday 2-4pm DME 224 MARC
Wednesday 3-5pm SS 402 BIANCA
Thursday 12-2pm SS 402 BIANCA

Assessments:
Assessment task Percentage of marks Due date in 2013
allocated
Library Quizzes (3) 10 in total 20, 27 March & 10 April by 4
pm.
Court Report 30 17 April by 4pm
Case Brief & 10 As allocated, commencing
Presentation weeks 5
Examination 50 University examination period

Essential texts
1. Laying Down the Law, 8th Edition, 2012, by Cook, Creyke, Geddes & Hamer
2. An Australian Legal Dictionary
Students will need to refer to Interpretation of Legislation Act 1984 (Vic) & the

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Australian Guide to Legal Citation 3rd ed 2010.
http://www.law.unimelb.edu.au/mulr/aglc

Other essential readings will be placed on E-Reserve or LMS-Moodle and are

noted in the reading guide below
For the list of materials on e reserve for LAW1LIM, go to ‘Subject Material’ on the
Library’s online catalogue, and type in the Subject code.

Special study requirements:

Students will need ready access to a computer with internet connection to obtain
the subject material which is posted to the subject website as well as
announcements which are posted to that site from time to time. Also, the three
library assignments will be available via the LMS.
Reading materials referred to in this Guide are available on electronic reserve
which is accessible through the Library web page.
Students must be able to travel to a Victorian court for the Court Visit in week 4.
Students with special needs whose participation in this subject might be limited by
any study requirements are encouraged to consult the Equality and Diversity
Centre. Further information and contact details for the centre are available at
http://www.latrobe.edu.au/equality/

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 2. Subject description
In this Subject we explore, in an introductory framework, three main themes. The
first theme considers the underpinnings of law and the legal system in Australia,
aiming to raise questions such as ‘what is law?’ and ‘how does the legal system in
Australia operate?’ The second theme examines issues relating to the art of
lawyering. Specifically, we work on developing skills such as case analysis and
legislative interpretation, which are crucial to the practice of law. The third theme
involves placing law in Australia in its context. We discuss issues concerning the
legal profession, legal ethics and access to justice. The overall aims of the subject
are that by its end, students will have developed basic skills which are ordinarily
involved in the task of lawyering such as finding primary sources of law, handling
cases, handling legislation, handling facts in legal situations, legal problem solving,
and have an awareness of the wider, contextual dimension to the exercise of these
skills.

3. Learning and assessment

3.1 Nature and purposes of assessment in this subject

Assessment is an important part of your university study. It can help you, and your
lecturers and tutors, to see how well you are doing and to identify your strengths in a
subject. It can also identify skills or concepts you need to work on, and what you (and
your lecturers and tutors) can do to help you develop in these areas.

Assessment has thus two general purposes. One is called ‘formative’ — the purpose
of assisting your understanding and development as a learner, in this subject and
beyond it. Constructive feedback is the means by which formative assessment is
given. Formative assessment may take the form of written comments or corrections
specifically to you, or it may take the form of verbal feedback or group feedback (to
your seminar group or the whole class). In the case of some online assessments, you
may receive automatic feedback.
In this subject the following means of assessment are formative:

informal feedback from fellow students on the case brief presentation

formal results of online library assignments
summary feedback sheets on the court report and the written document
supporting the case brief presentation
feedback in seminars

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It is important that you consider all this feedback, as it will tell you what you can do to
learn more effectively and achieve better grades, in this subject and subsequent
subjects.

The other purpose of assessment is ‘summative’. It summarises how well you have
performed against the assessment criteria, and grades your performance. In this
subject the following means of assessment are summative:
marks and grades on the case brief presentation, court report, library
assignments and the final examination.

3.2 Learning outcomes

The learning outcomes define the overall goals of study in this subject.
On successful completion of this subject students are expected to:
1. Demonstrate knowledge of the functions of the Australian legal system including
the main legal institutions and their role as sources of legal authority.
2. Locate primary and secondary sources of law and use various legal research
tools competently
3. Apply problem solving techniques in the law school context.
4. Demonstrate the ability to analyse, interpret and apply case law and legislation.
5. Apply appropriate written and oral communication skills in the law school context.
6. Apply team work skills in a small group setting.
7. Think reflectively about philosophical, social and ethical issues affecting legal
practitioners and legal practice in Australia.
8. Demonstrate an awareness of the nature of academic integrity and its
consequences and its relationship to legal professionalism.

3.3 Assessing the learning outcomes

3.3.1 Student learning

The student learning outcomes detail what students should be able to do to

demonstrate their successful achievement, or development of, a particular learning
objective.

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Learning outcome 1:
To demonstrate knowledge of the functions of the Australian legal system
including the main legal institutions and their role as sources of legal
authority.

Student learning outcomes Assessment

1. Students will demonstrate familiarity with court Library Quiz;
hierarchies, the doctrine of precedent and concepts Court Report;
such as the rule of law. Case brief &
presentation; &
Examination
2. Students will demonstrate an understanding of the Court Report;
legislative process, and the doctrine of the Case brief &
separation of powers. They will be able to explain presentation;
the legal effect of delegated legislation, and apply & Examination
basic statutory interpretation techniques such as the
purposive approach and the literal approach.
3. Students will demonstrate an understanding of the Court Report;
interface between legislation and case law, such as Case brief &
by being able to apply case law to legislative presentation;
interpretation in a problem. & Examination
4. Students will have gained “hands on” experience Court Report
with the court system and the adversarial process
by attending at least one contested court session.
Learning outcome 2:
Locate primary and secondary sources of law and use various legal
research tools competently

Student learning outcomes Assessment

1. Students will engage in online legal research, using Library Quiz;
a variety of approaches Court Report;
Case brief &
presentation

2. Students will locate Australian and international Library Quiz;

cases, legislation and secondary sources and Court Report;
accurately cite these materials Case brief &
presentation
Learning outcome 3:
To apply simple problem solving techniques in the law school context.
Student learning outcomes Assessment
1. Students will apply a problem solving method to Examination
structure their answers to hypothetical problems

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 2. Students will demonstrate an ability to correctly Examination
identify legal issues raised by a legal problem.
3. Students will identify different kinds of facts in legal Examination
problems (assumed, missing, ambiguous) and
demonstrate the ability to apply the facts of legal
problems to the extent possible.
Learning outcome 4:
To demonstrate the ability to analyse, interpret and apply case law and
legislation.
Student learning outcomes Assessment
1. Students will be able to read a case and Court Report;
demonstrate their understanding of its significance Case brief &
by identifying key elements such as ratio decidendi presentation;
and obiter dictum. & Examination
2. Students will be able to summarise and analyse a
case in the form of a ‘case brief’ and demonstrate Case brief &
an understanding of its common law significance. presentation
3. Students will be able to extract relevant legal Court Report;
principles from cases and apply them to statutory Case brief &
interpretation problems. presentation;
& Examination
4. Students will be able to read and understand Court Report;
legislative provisions and apply fundamental Case brief &
statutory interpretation techniques. presentation;
& Examination
Learning outcome 5:
To develop and apply appropriate written and oral communication skills in the
law school context.
Student learning outcomes Assessment
1. Students will demonstrate a high standard of Court Report;
English expression, including spelling, grammar, Case brief &
syntax and punctuation. presentation;
& Examination
2. Students will demonstrate the ability to present a Court Report;
well structured and clear argument, based on legal Case brief &
sources. presentation;
& Examination
3. Students will demonstrate an understanding of the Court Report;
conventions of legal referencing, by using the Case brief &
prescribed Style Guide. presentation
4. Students will demonstrate a capacity to present Case brief &
legal material to an audience, and answer questions presentation
raised by their presentation.
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 Learning outcome 6:
To develop and apply team work skills in a small group setting.

Student learning outcomes Assessment

1. Students will demonstrate the capacity to work Case brief &
effectively together in small groups to achieve a presentation
common goal.
Learning outcome 7:
To think reflectively about social and ethical issues affecting legal practitioners
and legal practice in Australia.
Student learning outcomes Assessment
1. Students will reflect on the role of the legal Court Report,
profession and will demonstrate an understanding Case brief &
of the composition of the legal profession. presentation;
Examination
2. Students will demonstrate an understanding of Court Report,
some basic ethical issues confronting practitioners Case brief &
and be familiar with the legislative requirements presentation;
governing lawyers in Victoria. Examination
3. Students will reflect on, and make a well reasoned Examination
argument relating to, social context issues such as
access to justice.
Learning outcome 8:
To demonstrate an awareness of the nature of academic integrity and its
consequences and its relationship to legal professionalism.

Student learning outcomes Assessment

1. Students will reflect on the various forms and Library Quiz
nature of plagiarism.
2. Students will reflect on notions of academic and Library Quiz
professional misconduct arising out of allegations and
proof of plagiarism.
3. Students will be able to recognise instances of Library Quiz
plagiarism and know how to avoid it

3.4 Alignment of assessment and graduate attributes

La Trobe Law School has adopted a list of law graduate attributes, which identifies
the generic understandings, skills and values that all law graduates are expected to
have. Here is the list:

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Faculty of Business, Economics & Law, La Trobe University
 1. General attributes: Law graduates are expected to have developed an
appreciation of the values integral to the discipline.

2. Knowledge of law and its contexts: Law graduates are expected to have
acquired the knowledge of law and its contexts necessary for legal
practice.

3. Professional skills: Law graduates are expected to have acquired a range

of legal skills.

4. General communication skills: Law graduates are expected to be able to

communicate appropriately with a range of people in a variety of settings
and to be able to work effectively in a multidisciplinary team environment.

5. General problem-solving and decision-making skills: Law graduates are

expected to have acquired the capacity to learn independently and
effectively, and the capacity to apply problem solving and decision-making
skills.

6. Professional values and ethical decision-making: Law graduates are

expected to appreciate the values of the legal profession and to
understand their ethical responsibilities.

To show how what you learn in this subject contributes to your developing these
attributes, the following table briefly identifies the law graduate attributes associated
with each of the assessment tasks to be undertaken in this subject.

Assessment Relevant law Aspects of the attribute to be demonstrated by

task in this graduate the assessment task
subject attribute
demonstrated
Case 2 knowledge and understanding of the relevant
brief legal rules and principles, their broader contexts
presentation and the issues raised
3 legal research skills; ability to interpret and
analyse legal and other materials; reasoning
skills; ability to present work in an appropriate
form
4 oral presentation skills; written communication
skills
5 ability to analyse issues and decide on best
approach to address them; ability to think and
work independently
6 ability to engage in co-operative and respectful
discussion with colleagues, especially where
socially diverse
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 Court Report 2 knowledge and understanding of the relevant
legal rules and principles, their broader contexts
and the issues raised
3 legal research skills; ability to interpret and
analyse legal and other materials; reasoning
skills; ability to present work in an appropriate
form
4 written communication skills
5 ability to analyse issues and decide on best
approach to address them; ability to think and
work independently
Examination 2 knowledge and understanding of the relevant
legal rules and principles, their broader contexts
and the issues raised
3 legal research skills; ability to interpret and
analyse legal and other materials; reasoning
skills; ability to present work in an appropriate
form
4 written communication skills
5 ability to: analyse issues; decide on best
approach to address them; think and work
independently

3.5 Assessment tasks

There are four major assessment tasks in this subject. They are described in detail
below:

1. Library Quizzes 10% of the marks in LIM

2. Court Report 30% of the marks in LIM
3. Case Brief and Presentation 10% of the marks in LIM
4. Examination 50% of the marks in LIM

3.5.1 The Library

The objective of the Library Quizzes is for students to develop their library research
skills: the aim is not only to be ‘right’ but to also learn from completing the exercise.
This assessment is to be completed online.
There are three online “quizzes” to be completed on three topics:
Quiz 1-case law
Quiz 2-legislation
Quiz 3-secondary sources

Due dates are as follows

Quiz 1: Wednesday 20 March, 4pm

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Quiz 2: Wednesday 27 March, 4pm

Quiz 3: Wednesday 10 April, 4pm

Students must complete all three quizzes. One of the three quizzes will be selected
at the end of the assessment period for grading out of 10 marks.

3.5.2. Court Visit, Report and Analysis (The Court

The objectives of the
Court Report are:
(a) To expose students to the ‘law in action’
(b) To encourage students to critically observe, understand and reflect on legal
institutions and the court process
(c) To facilitate students’ understanding of the statutory bases of litigation and
substantive and procedural law
(d) To allow students to analyse the workings, purpose and effectiveness of a
court hearing
(e) To encourage students to contemplate the role of legal representatives, the
judiciary and the jury

Due to the nature of different court proceedings, students are encouraged to ‘shop
around’ to find a matter on which they can adequately base their Court Report.
Students are therefore strongly advised to begin their Court Report as soon as
possible. Students may well need to attend court on more than one day to ensure
attendance at an appropriate case, and will need to plan accordingly. Note that there
is no seminar scheduled during Week 4. Instead, seminar leaders will organise
optional court visits in that week (not necessarily during seminar hours). If you have
never visited a court before, you may well wish to participate in an organised visit
with your seminar leader. Note, there is a lecture in week 4.

Students may visit any Victorian Court of their choosing - either criminal or civil.
Students must attend a court hearing for the purpose of LIM 2013 – you may NOT
use a hearing that you attended for another purpose. Students who wish to attend a
federal hearing (eg a Family Court or High Court matter) must seek permission from
their Seminar Leader before doing so but should note that for various reasons State
court matters will be easier for students to deal with. Tribunal Hearings (eg such as
VCAT) are NOT acceptable for the purposes of the Court Report. Note that students
MUST attend a contested hearing – that is, a hearing involving a judge/magistrate,
lawyers and defendant/parties, where arguments are made. “Mentions” are not
acceptable. A hearing in which a defendant pleads guilty will not be acceptable.
Sentencing hearings are not acceptable.

COURT REPORT
Part A: Matters that should be covered in all cases
Date, court, and parties

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1. On what date did you observe the court case?
2. What was the name of the court you attended? Where was it? What was the
name of the presiding judge or magistrate?
3. What were the names of the parties to the case?
The proceeding
4. Was the case a criminal or a civil matter? Further, what particular area of law did it
fall within? For example, if it was a criminal matter, what were the charge(s)? (For
example, was it a charge of murder, theft, stalking, etc?) If it was a civil matter,
what was the category of complaint or claim (succinctly stated)? (For example,
did it involve the law of negligence or product liability (torts) or was it a contractual
dispute?)
5. What was the legal basis for the case (i.e. what substantive law was said to have
been breached or to somehow give rise to the proceedings)? If it was a statutory
basis, identify the relevant Act, section, etc. (For example, was it an offence
against s. 17 of the Summary Offences Act 1966 (Vic)?) If it was a common law
basis, what case(s) provided the basis?
6. What particular procedural stage was the case at on the day you observed it? For
example, was it a committal proceeding, an actual trial, a hearing on costs, etc?
What was the purpose of that stage of the proceeding?
7. Detail the level of formality that was evident in the Court.
8. Did any factors such as culture or language affect the proceeding? If so, how?
9. Describe the atmosphere in the Court.
Factual issues, proof, and evidence
10. What were the facts in dispute (if any) between the parties? What facts were
agreed (if any) between the parties, or at least not in dispute?
11. Who bore the burden of proof in relation to the facts in dispute? What was the
standard of proof required of them?
12. What witnesses, if any, gave evidence? What evidence did they give? If no
witnesses were called, how was evidence (if any) put to the court?
Legal issues and arguments
13. What legal issues (if any) were raised in the proceeding (i.e. what questions were
raised regarding the interpretation or application of the law, including questions
pertaining to stakeholders’ legal rights, liabilities or obligations)? What legal
arguments were presented regarding those issues, and by whom? What statute
or case law was referred to (if any)? How were these used in the argument(s)?
Legal representation and self-representation
14. Did the parties have legal representation?
15. For parties that did have legal representation, describe, analyse and critically
evaluate the role of their legal representative(s). Among other things, consider
whether legal representation was advantageous to the party or parties, whether

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 the legal representative seemed to do their job with knowledge, skill, and
professionalism etc.
16. What models or paradigms of lawyering did you observe? Give examples.
Students may wish to refer to Christine Parker ‘A Critical Morality for Lawyers:
four approaches to lawyer’s ethics’ (2004) 30 (1) Monash University Law Review
50.
17. If a party did not have legal representation, describe, analyse and critically
evaluate how that party conducted their own case. Among other things, consider
whether they appeared disadvantaged, whether the magistrate or judge appeared
to assist the unrepresented party or make any allowance for that fact, whether the
other party’s lawyers (if any) took advantage of the unrepresented party, or made
allowances, etc.
The decision-maker(s)
18. Describe, analyse and critically evaluate the work done by the jury, if any, in the
case. Among other things, consider what the role of the jury is in general, how
easily the jury in the observed case could be expected to have followed
proceedings, whether the jury asked any questions of the judge, etc.
19. Describe, analyse and critically evaluate the conduct of the judge or magistrate in
the case. Among other things, consider what the role of a judge or magistrate is in
general, whether the judge or magistrate in the observed case was (and whether
they should have been) active or passive or something in between, whether they
treated the parties fairly, whether they conducted proceedings efficiently, whether
they acted as you expected, etc.
Result of the day observed
20. Was any result reached on the day of the proceedings that you observed? If not,
at what point was the matter left when you finished observing? What do you
expect will be the result, and why? If a result was reached, answer Questions 24–
27 below.

Part B: Matters that should be covered if possible

Procedural history
21. What procedural steps had been taken to get the matter to court on the day you
observed it? What documents were used in taking those steps? (For example,
had a summons been issued, or a writ filed, or a notice of appeal served, or a
notice of motion filed, etc?)
22. How long had the case taken, from the time the matter was first brought to court,
before getting to the stage you observed? Note the relevant dates.
23. How long did the case take to be completed, on the day you observed it?
Final result
24. What was the final result? What facts were found proven? What legal issues were
decided and what were the decisions on those issues? What final orders were
given?
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25. Why was this result reached? If the result was reached due to a judge’s or
magistrate’s decision, what reasons did they give for their decision?
26. Did the decision-maker(s) (judge, jury, or magistrate) decide as you expected?
27. In your view, was the correct result reached? Was a ‘just’ result reached? Give
reasons for your view.

Presentation of written assignments

The Court Report of 1500 words comprises 30% of the marks for LAW1 LIM.
Your written assignments must —
Have your name and student number clearly indicated on the front sheet
Indicate your seminar leader and the time and day of your seminar
Be typed in 12 point font
Be printed on A4 paper on one side of the paper only
Be 1.5 or double-spaced
Have reasonable margins
Have pages which are consecutively numbered
Be securely stapled
Have a coversheet conforming to the requirements below
Consider each of the 27 matters (where applicable to your case)
separately.
The use of headings and sub headings is encouraged.
Do not write the report in ‘essay format’.

Word length

The word count does not include footnotes and reference lists. The Court Report
must be no longer than 1500 words. You must put the word count on your
assignment. If your Report is over the word limit, only the first 1500 words will be
read, the remainder of your answer will be disregarded.

Please take note that the word limits will be strictly applied. The so-called ‘10%
leeway rule’ (allowing the word limit to be exceeded by 10%) does not apply.

Citation style

Please use footnotes, not endnotes. Citations must follow the Australian Guide to
Legal Citation 3rd edition.
http://mulr.law.unimelb.edu.au/go/aglc --> AGLC3 download.

A summary of the AGLC3 is available on the LaTrobe Library website –

http://latrobe.libguides.com/law --> ‘La Trobe Law Short Guide to Citing the Law’
listed under ‘User Guides’.

Cover sheet

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Reports must have stapled to the front a duly completed, signed and dated
Statement of Authorship cover sheet, or they will not be marked.

A copy of the coversheet can be obtained from either of the following sites:

http://www.latrobe.edu.au/lawman/currentstudents/faculty/resources/index.html
(Faculty site)

http://www.latrob*e.edu.au/learning/integrity.html (University site)

You must write your tutor’s name and the day and time of your seminar on the
coversheet. Please do not write the lecturer’s name.

Submission of assignments

You are required to submit two (2) copies of your Report i.e., one electronically via
Turn-it-in on the LIM subject LMS website, and the other in paper. Note, only submit
your final assignment to Turn-it-in. As Turn-it-it can accept only one submission per
student, draft submissions should NOT be submitted.

For students enrolled at Bundoora, the paper copy must be lodged in the box labelled
‘LAW1LIM’ located at the Faculty of Law and Management Student Services Office
on level 2 of the Donald Whitehead Building, by 4 pm on the nominated due date.

For students enrolled at Bendigo, the paper copy must be lodged in the marked
assignment box on the 2nd floor of the Business Building, by 4pm on the nominated
due date.

Reports submitted after 4pm of that day will not be collected on that day, but will be
collected and stamped as received on the next day. That is, they will be treated as
being one day late. The ‘LAW1LIM’ submission box will most likely not be available
after the due date such that students should submit late Reports in the box marked
‘Late Assignment Box’.

Students are not permitted to submit their Reports by fax, or by email attachment, or
in person directly to teaching staff. Postal submission is not encouraged. If you do
post your essay, then the date and time of its receipt at the Faculty of Business
Economics and Law Student Services Office, not the date of posting, will be
treated as the date of submission.

Students are advised to keep a copy of their assignments and retain these and the
returned originals until the final marks for the subject have been released.

Application for extension

Individual extensions of the due date for Reports will only be granted in special
circumstances, such as illness or serious personal problems. Applications must be
supported by relevant documentary or other evidence, especially where any medical

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or similar basis for an application is claimed. Other study or normal work
commitments cannot be accepted as a reason for an extension.

Applications for an extension of time must be:

made on the standard form available from
http://www.latrobe.edu.au/lawman/currentstudents/faculty/resources/index.htm
l;
made before the due date; and,
accompanied by appropriate documentary support, including medical
certificates, the originals of which must be sighted by the staff member
granting the application.

You must bring your completed extension application form and original supporting
documents to your seminar leader for approval.

The approved extension application form, together with copies of any supporting
documents, must then be stapled to your submitted assignment, after the
Statement of Authorship cover sheet and before the title page.

If you fail to include the approved extension application form with your assignment,
you will not get the benefit of the extension.

Penalty for late submission of assignments

Students should refer to the Law School Policy on late submission of assignments.
Assignments that are submitted after the due date or, if an extension has been
granted, after the extended due date will incur a penalty of 5% of the total marks
available for the particular assignment per calendar day late. Assignments will
not be accepted after the 5th day after the due date or after feedback on the
assignment has been returned to any student by the LAW1LIM teaching team.

3.5.3. The Case Brief and

The case brief and presentation is worth 10% of the total marks for LIM.
The exercise involves students working in groups to “brief” a legal case and to
present the case orally to the seminar group. The seminar leader will allocate
students with the legal decision to be briefed, and the week in which the presentation
is to be made to the class, in the first seminar. If you miss the first seminar, it is
YOUR responsibility to contact your seminar leader and have a case assigned to
you.
Each group of students will be required to submit one typed, case brief of no more
than 250 words to their seminar leader at the time of their oral presentation.
Referencing must comply with the style guide set out in the Australian Guide to Legal
Citation, 3rd edition, University of Melbourne 2010. See Short Guide to Citing the
Law 3rd ed 2011 http://latrobe.libguides.com/law

Late submissions will be penalised.

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Faculty of Business, Economics & Law, La Trobe University
 The oral presentation should be no longer than ten minutes in total. Presentations
that are over, or significantly under the time limit will be penalised. The purpose of
the presentation is for students to develop their oral communication skills. Students
should NOT read their case brief, but aim to inform their seminar group of the
essence of their case and its interesting/important aspects. Students may divide the
presentation between themselves as they see fit. Students are encouraged to use
one of the following formats of presentation:
Quiz
Role play
Debate
Mock trial
Media interview
As this piece of assessment is designed to develop and encourage teamwork skills,
each student is required to share an equal load of the work involved in the
assignment, and each student in the group will receive the same mark. Students are
required to discuss and resolve any issues arising within the group before the date of
their presentation. If a student fails to participate equitably in the assignment, that
student will not be considered part of the group and will receive zero (0) marks for the
assessment.
The rules relating to extensions and special arrangements apply to this assessment.
Students who fail to present their case brief at the seminar date assigned them by
their seminar leader will be penalised according to school policy, unless they have
previously been granted a different arrangement by their seminar leader.

Presentations will commence in week five, with two cases being briefed each week in
each seminar group. In order to ensure equal treatment of students, grades for case
briefs and presentations will not be handed back to students until presentations for
the entire cohort are completed.

The cases will be allocated to student groups in seminar one, and presented by
students in seminars, beginning week 5 as follows:

Week 5
Jonah & White [2011] FLR 236
R v Mokbel [2012] VSC 86

Week 6
R v Baxter and Brading (2012) FLR 160
Dean v Phung [2012] NSWCA 223

Week 7
Almond v Heidke [2012] FMCAfam 1335
KS v Veitch (No 2) [2012] NSWCCA 266

Week 8
Comcare v Commonwealth of Australia [2012] FCA 1419
Alicia -

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Faculty of Business, Economics & Law, La Trobe University
Marta – [email protected]

Week 9
R v Abdul-Rasool (2008) 18 VR 586
Rixon v Star City Pty Ltd (2001) 53 NSWLR 98

3.5.4. The

The examination will comprise of two hours of writing time, and is worth fifty percent
(50%) of the total marks in LAW1LIM . The examination in this subject is closed book,
meaning that students will not be able to take any written materials into the
examination room with them. More information about the examination will be
provided towards the end of semester.

3.6 Student Assessment “Best Practice”

Students must retain in their possession all working materials – whether these are
hard copy or electronic – until any assessments are returned. Where you are
working from library books, you must keep full notes (you do not have to keep the
actual books) from your reading of those texts. If you are researching online, you
must keep a written track or ‘map’ of your research. Keep a notebook with your
search phrases, and how you decided on them, and the websites these phrases led
you to, including dates and times accessed, so that if necessary, you can retrace
your steps. If there are any questions about the originality of your works, you will be
required to produce these ‘work notes’ and explain your process.

Once again, we reiterate the fact that plagiarism is extremely serious and students
MUST take responsibility for ensuring that they understand what it is, and how to
avoid it. If you are still unclear, please seek assistance.

3.7 Assessment criteria

An answer to all assessment in this subject will be assessed according to —
how well the answer addresses the question asked;
how well expressed and comprehensible it is;
how well supported it is with evidence;
its accuracy;
the apparent effort made in answering a question;
the logical cogency of the reasoning;
the depth of insight and observations where they are appropriate;
whether it demonstrates individual thought as opposed to, for instance, an
over-reliance on secondary sources;
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Faculty of Business, Economics & Law, La Trobe University
 whether it is properly referenced, and whether other formal requirements
have been met. Note, referencing requirements are relaxed for the
examination.
how well presented and structured it is;
whether it is the student’s own written work; see ‘Academic Plagiarism’ in
this Subject Learning Guide; and

3.8 Assessment tasks

Each of the types of assessment task in this Subject seeks to give students the
opportunity to develop and display a range of academic understandings and skills.
While much of the desired understandings and skills for each task overlap, there are
nonetheless some differences. Those understandings and skills, as demonstrated in
the relevant completed task, are then assessed and graded.

Below are listed:

the relevant assessment criteria to be used in assessing and grading each of
the assessment tasks in this Subject; and
brief characterisations of the general performance expectations on which
grading is based.

It must be noted that the following lists of assessment criteria and performance
expectations do not reduce assessment to a formulaic exercise. In particular, it is a
mistake to treat a particular work’s overall grade as being the ‘average’ of the
assessments of all the assessable features of that work. Different aspects of student
work can be weighed differently, because not all assessable aspects are equally
relevant. The final mark for a given piece of assessment is very much a global
assessment of the work as a whole.

3.9 Assessment Criteria for Examination and Written Work

The following information is included to help in your understanding of what examiners

look for when assessing written work; it suggests factors or qualities they look for to
determine the levels of understanding and performance being demonstrated, and to
differentiate between the various grades.

As a general guide:
An Unsatisfactory (failing) paper: may not address the tasks required in the
particular assessment scheme. It has one or more serious defects. For
instance, the paper fails to identify the important task(s) involved in the
topic/problem/instruction/scenario; and/or makes serious errors in describing
and/or interpreting facts/sources/theories. In combination with one or more of the
preceding defects, the paper may be poorly structured and written; and/or may
fail to engage properly in analysis.

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Faculty of Business, Economics & Law, La Trobe University
 A ‘D’ grade answer: displays some relevant knowledge of the area or topic to be
considered and addresses the assessment scheme to a limited degree, but may
make one or more serious errors of fact or analysis; or address few of the issues
required; or be poorly written; or be poorly structured, or contain little or no
analysis

A ‘C’ grade answer: demonstrates generally sound knowledge of the area but
may present few reasons for a conclusion and lack thorough coverage of all the
issues raised by a topic/problem/instruction/scenario; structure and expression
may not be of a suitably high level.

A ‘B’ grade answer: displays deeper knowledge of the area to be considered and
of the issues involved, but may make relatively minor errors of fact and/or
analysis, particularly at the lower end of the grade. In a question requiring
multiple issues to be addressed it may (particularly at the lower end of the grade)
lack a comprehensive coverage of the issues; structure and expression would be
of a high level.

An ‘A’ grade answer: is not wrong on the area to be considered; displays a deep
knowledge of the area; and does not omit to discuss any major issue. While it
displays a wide coverage of issues it is not necessarily expected to address
every possible issue, particularly at the lower end. An ‘A’ paper recognises
arguments which support a particular proposition, and those which undermine it;
and uses available material to develop an argument in a manner which would
persuade a reader who was initially sceptical of the claims. Structure and
expression will be of a very high standard.

3.10 Assessment criteria for oral presentation

Assessment of the oral presentation will be based on the following criteria
Accuracy and relevance of content
Coherent structure
Clear and effective oral communication skills
Evidence of group work in the presentation
Effective and appropriate use of visual aids or other devices
Whether visual aids assisted or detracted from the presentation
Speakers’ engagement with the audience-eg eye contact, diction,
expression

A-grade work meets most or all of the assessment criteria at a high to very high
level. While almost all work can be improved in some way, there are generally no
areas in which A-grade work suffers notable flaws.

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Faculty of Business, Economics & Law, La Trobe University
 B-grade work meets most or all of the assessment criteria at a good to very good
level. It does not contain any major errors of fact or law, and generally addresses
the question’s requirements to a significant degree. It does not, however,
consistently reflect the assessment criteria at a high level and may contain,
especially in the lower half of the grade, some weakness in structure or
argumentation, or relatively minor omissions which the work should reasonably
have addressed if an A-grade were to be awarded.

C-grade work generally addresses most of the assessment criteria to a

satisfactory level (especially in the middle to upper range) but has some and
perhaps several areas in which it could be improved, perhaps notably. It may lack
and/or need improvement in clarity, structure and expression. It may contain a
number of relatively minor errors or omissions, especially at the lower end.

D-grade work contains some relevant and accurate information but generally fails
to reflect one or more of the assessment criteria in a major way; for example it
may contain major errors of fact or law; weak structure. A D-grade usually
indicates that the student needs to address a number of fundamental aspects of
their work.

Unsatisfactory work does not contain relevant and accurate information; or, if it
does to some extent, this is outweighed by a failure to reflect one or more of the
assessment criteria in a fundamental way; e.g. it may contain fundamental errors
of fact or law, very weak structure, poor audience engagement, poor use of visual
aids.

3.11 Notification of availability of mark and feedback

Students may collect their Court Reports and Case Brief Presentation marks in the
seminar for which they are enrolled. However, this is conditional on the student
having stated on the title page the seminar for which they are enrolled.
Examiners may write comments on an assignment answer and/or feed back sheet.
Due to time constraints, these may be brief. If you cannot read or do not understand
the comments, it is your responsibility to see the examiner. In addition, group
feedback on the assignment will be available in seminars and/or from the subject
web site from, or soon after, the time the assignments are handed back. Students
are expected to reflect on this feedback before approaching the examiner with a
query about their result..

3.12 Assessment requirements and definitions

3.12.1 Grading of student

La Trobe School of Law grading

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Faculty of Business, Economics & Law, La Trobe University
 Grade Range
A 80-100
B 70-79
C 60-69
D 50-59
<50
Other

See LMS — Law Noticeboard and Resources — Law

School Grading Policy.
3.12.2 Passing the

A student will pass if they achieve an aggregate of 50% in the subject.

3.12.3 Academic
Please read the following notice of University policy
carefully:
One form of academic cheating is plagiarism, the reproducing of someone else’s
words, ideas or findings and presenting them as one’s own without proper
acknowledgment.
There are many forms of plagiarism, including the following:
(a) direct copying of sentences, paragraphs or other extracts from
someone else’s published work (including on the Internet and in
software) without acknowledging the source;
(b) paraphrasing someone else’s words without acknowledging the
source;
(c) using facts and information derived from a source without
acknowledging it;
(d) using ideas directly derived from an identifiable author without
acknowledging the source;
(e) producing assignments which should be the student’s own
independent work in collaboration with and/or using the work of other
people (e.g. a student or tutor).

Assisting another person to plagiarise material may be punished as severely

as is plagiarism itself. Assisting plagiarism may involve a student lending work
(or by posting it on the Internet for sale) which is intended for submission for
assessment, or which has already been submitted, so that it can be copied
and handed in by another student as that student’s own work.

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Faculty of Business, Economics & Law, La Trobe University
 Students may find it helpful to discuss assignments with other students and
their tutors. The University encourages students to communicate with one
another in constructive ways about the learning process. Students may
choose to assist each other, for example in discussing the approaches that
might be taken to assignment topics, or helping with the availability of reading
materials. They should, however, write their assignments independently,
except when they are asked to work on a project as a member of a group
which is to submit a joint report, as equal contributors. In this case, except
where the final written work consists of sections for which particular individuals
take sole responsibility, the group as a whole assumes responsibility for it and
the proper acknowledgment of any use made of the words or ideas of people
outside the group.

The vigilance of the University in regard to plagiarism is in response to the

perceived growing incidence of plagiarism. The recommended penalties reflect
the value the University places on academic honesty and how seriously it
regards plagiarism offences. The University will protect its reputation for
academic integrity by ensuring that serious and repeat offenders, who wish to
obtain an unfair advantage through cheating, are given penalties proportionate
to the offences committed.
(http://www.latrobe.edu.au/learning/integrity.html.)
See also La Trobe University, Statute 16 Student Discipline and Misconduct, section
1:
“academic misconduct” means cheating, plagiarism or any other conduct
engaged in by a student with a view to gain for himself, herself or another an
unjustified advantage in assessment whether such advantage occurs or not,
and includes any conduct which constitutes a breach of a relevant Statute or
Regulation, the Academic Misconduct Policy, or any other relevant University
policy.
(http://www.latrobe.edu.au/legalservices/assets/downloads/statutes/s16.pdf)
For guidance, you are strongly recommended to peruse the School of Law Short
Guide to Avoiding Plagiarism and Inadequate Referencing at LMS —
http://latrobe.libguides.com/law
3.12.4 Admission to

Changes to the rules governing admission to legal practice in Victoria (and other
Australian jurisdictions) have made it more important than ever for law students to
fully understand what constitutes plagiarism and academic misconduct. Anyone
seeking admission to legal practice in Victoria must now provide evidence of their
good academic character, and a recorded allegation (not just a conclusive finding)
may be enough to prevent admission. This section in the Subject Guide, in addition
to the discussion of plagiarism in the subject, means that students who have studied
LAW1LIM are considered to have full notice of the law school policy on plagiarism. If
you are at all confused or concerned about any of these issues, seek clarification
from academic staff as soon as possible.

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Faculty of Business, Economics & Law, La Trobe University
All assessed work in the law school must be accompanied by a Statement of
Authorship. This document is a legal form which you must sign, stating that the work
you are submitting is your own original work, and that due credit has been given to
the work of others. By signing this document, you are bound to its terms. In order
to sign it, it is important that you understand what is meant by giving ‘due credit’ to
others, and what is meant by ‘original’ work.
3.12.5
Where you use the exact same wording from another author, you
MUST use quotation marks to highlight this fact, and a footnote to set out exactly
where this work was sourced. If you use the idea, but not the exact wording (known
as ‘paraphrasing’), then you must put a footnote in the sentence where the idea
occurs, to indicate where that idea was sourced. To fail to do either of these things
amounts to serious academic misconduct which may impact on your suitability for
admission to legal practice. Below is an example:

Excerpt from Cooke, Creyke et al, Laying Down the Law (Lexis Nexis, 8th ed,
2012) 208.
As was pointed out earlier, precedents may retain their authority no matter
how old they are. Nevertheless, it is well recognised that the law gradually
adapts itself to changing social conditions and that very ancient precedents
are often inapplicable to modern circumstances. For this reason they are cited
with comparative infrequency. And appellate courts may, on occasions,
expressly overrule precedents that now appear out of step with current values.
The High Court in R v L (1991) 174 CLR 379, had to decide whether there
was such a crime as rape in marriage. For over two hundred years the
common law rule had been that marriage constituted an irrevocable consent to
sexual intercourse on the part of a spouse. A husband, therefore, could never
be found guilty of raping his wife. The principle, which had been
authoritatively expounded in 1736, had apparently been accepted by the High
Court in its earlier decision in Bartlet v Bartlet (1933) 50 CLR 3. But, by the
1990s, social conditions and values had changed and the principle was no
longer acceptable to the vast majority of the population. That being the case,
the High Court considered itself ‘justified in refusing to accept a notion that is
so out of keeping with the view currently taken by society of the relationship
between the parties to a marriage’; at 390.

Excerpt from Student Essay

While it has been argued that precedents retain their authority no matter how
many years ago they were decided, it has also been recognised that the law
can adapt to changing social conditions, when those precedents are now
inapplicable to modern circumstances. Courts can do this by citing cases
infrequently. Sometimes appellate courts can even expressly overrule a
precedent which is out of step with current values. For example, in R v L1 the
High Court refused to follow Bartlet v Bartlet where it had been held that a
husband could never be found guilty of raping his wife, because the notion
was “so out of keeping with the view currently taken by society of the
relationship between the parties to a marriage.”2

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Faculty of Business, Economics & Law, La Trobe University
 1. R v L (1991) 174 CLR 379
2. Note 1, at 390.

Analysis
This excerpt constitutes plagiarism, because the central ideas and structure of the
original text have simply been replicated, with no credit given to the authors of Laying
Down the Law. While part of the High Court decision has been put in quotation
marks, this is also academic misconduct, because the student has not actually read
the High Court decision and taken the quote from the actual judgment, but simply
copied it from LDL without stating that that is the source of the quote. In order to
avoid plagiarism charges, the excerpt ought to have looked like this

While Cook, Creyke et al have argued that “precedents retain their authority
no matter how old they are”,1 they also recognise that the law can adapt to
social change. When social change has been so great that the gap between
the times represented by the original precedent, and the current climate, are
so vast that to impose the old legal rule in the modern context would make no
sense, courts have several options.2 First, a court could simply not refer to that
out of date precedent. Second, an appellate courts might expressly overrule a
precedent.3 One example is found in R v L where the High Court refused to
follow Bartlet v Bartlet, a decision from 1933 where it had been held that a
husband could never be found guilty of raping his wife, because the notion
was “so out of keeping with the view currently taken by society of the
relationship between the parties to a marriage.”4

1. Cook et al, Laying Down the Law ( Lexis Nexis, 8th ed, 2012) 208
2. Ibid
3. Ibid
4. R v L (1991) 174 CLR 379, at 390, quoted in ibid

Phrased in this way, the student avoids problems with plagiarism and academic
misconduct, because due credit has been given to the original authors of the work –
both where work has been paraphrased, or an idea used, and where direct
quotations have been made. Note that while the student has not committed an
offence, s/he still has a problem because the work is not really original – it is simply a
revisiting of an entire section of another authors prose – and it will be marked down
accordingly.

3.13 Special circumstance processes

Problems, Who to see for help
Challenges and difficulties in a variety of circumstances are not unusual during the
years of university studies. If you are feeling pressure about anything, in the first
instance see your subject coordinator who will give you some direction. If your

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Faculty of Business, Economics & Law, La Trobe University
problem is subject specific, and if your challenges and difficulties are seen to need
other input, they will help you with a referral to another section of the University. If
you have a problem, try to decide whether it is administrative, academic or personal.

If it is administrative, in the first instance seek assistance from the School’s Academic
Services Staff

If it is academic, (for example you do not understand a problem in the text), see your
lecturer or tutor.
If it is personal, (eg health, relationships or finance) confidential advice is available
through the University counselling services.

Academic Language and Learning (ALL) Subject

The Academic Language and Learning (ALL) subject works closely with teaching
staff in all Faculties and campuses to ensure that all La Trobe students – including
those from non-English-speaking backgrounds – develop high-level academic
speaking, writing, reading, and numeracy skills required for successful learning in
their courses. To achieve those ends, the ALL Subject staff: collaborate on course
and subject design; advise on teaching and learning strategies; teach/co-teach
special undergraduate and postgraduate subjects, tutorials and workshops; and
provide professional development for staff.

For further information and links to resources, visit http://www.latrobe.edu.au/learning

The email address for students to contact the ALL subject for assistance is
[email protected].

Special Consideration

Special Consideration is an equity measure to ensure that the assessment of

students takes account of temporary adverse circumstances that impact negatively
on individual students’ ability to demonstrate their learning achievements in an
assessed task.

Students who consider that their performance in an assessed task was adversely
affected by compelling or compassionate circumstances may apply to the University
for Special Consideration. It is not a substitute for knowledge or skills you should
have learned and because of this you will not be granted special consideration for
your performance throughout a semester.

IMPORTANT NOTE

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Faculty of Business, Economics & Law, La Trobe University
 An application for special consideration does not guarantee that you will be
granted a special examination or an adjustment to your results. The Committee
reviews each application on an individual basis.

In most cases, you will NOT be given a second opportsubjecty to sit an

examination as a result of an application for special consideration. The
Committee only approves second examinations in extraordinary cases.

If you do not submit your application on the Faculty of Law and Management’s
Application for Special Consideration form then your application will not be
considered.

If your application does not contain all of the information requested and the
required supporting documentation then your application will not be considered.

If your application is not submitted within the required time frame after the due
date of the assessed task then your application will not be considered.

Applications for special consideration will be considered by a Faculty Committee

comprised of academic staff members. Once the Committee has assessed your
application, your subject co-ordinator will be notified of the results of the application.
The decisions of the Special Consideration Committee are final and cannot be
changed by subject co-ordinators. Please do not contact subject co-ordinators
regarding the outcome of special consideration applications.

Who should apply for special consideration?

A student who is unable to sit an examination due to illness or other cause.

A student who considers that his or her performance in an assessed task has
been adversely affected by illness or other cause immediately prior to the due
date of the assessed task.

Requests for special consideration must be for serious circumstances beyond

the control of the student and will usually fall within the following causes:

- Serious illness or psychological condition – e.g. hospital admission, serious

injury, severe illness, severe anxiety, or depression (not on-going conditions)

- Loss or bereavement – e.g. death of a close family member

- Hardship/trauma – e.g. victim of crime, sudden loss of income or

employment, family relationship breakdown, severe disruption to domestic
arrangements.

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Faculty of Business, Economics & Law, La Trobe University
When should you apply for special consideration?
Applications should be submitted to the local Student Administration Office of the
University not later than seventy-two hours after the due date of the assessed task.

What outcomes are possible?

Applications will be assessed and will be assigned one of the following outcomes:

reschedule an Assessment Task; or

set a substitute Assessment Task; or
allow extra time to complete an Assessment Task; or
award a Reasonable Adjustment of Mark for the Assessment Task or subject
for which Special Consideration is sought; or

recommend that the Chief Examiners offer a formal Special Examination; or

decide that there are insufficient grounds for the award of Special
Consideration.

How should you make application for special consideration?

You must obtain a copy of the official Faculty Application for Special Consideration
form from the following website: http://www.latrobe.edu.au/students/forms/search-
results:
In Document Type – arrow down to Form
In the Topic – arrow down to Enrolment
then click Submit.
Select the document: Faculty of Law & Management Application for Special
Consideration (PDF File 94.9 KB)

or also available for collection from the School office.

All of the information requested on the form must be filled out.

You must supply evidence of the reason you are applying for special
consideration. For example, if it is medically related you must have a registered
medical practitioner fill out the section in the Application form and sign it. Medical
certificates must be completed by a registered medical practitioner. The best way
to ensure that

this is the case is to ensure the certificate includes a Medicare Provider Number.
(This is normally a 5 or 6-digit number followed by 2 letters). Certificates that do
not include a Provider Number will not be accepted. The medical certificate must
state that in the medical practitioner’s opinion you were or will be unfit to attend
an assessment task or have been or will be adversely affected by illness. Medical
certificates in which the medical practitioner reports that you claim to be unwell

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Faculty of Business, Economics & Law, La Trobe University
 will not be accepted. The medical certificate must cover the date on which the
assessment is held.

If you are unable to complete an assessment component or your

study is adversely affected due to a non-medical reason, you are
encouraged to provide as much documentary evidence as you can
to support your application. This should be objective evidence from
an independent source. Documentation may include a death notice
or certificate, a police report, a letter from an employer, a current
letter from La Trobe Counselling Services or La Trobe Equality and
Diversity Centre. If you have questions or concerns about
documentation, see Student Administration on your campus for
advice.

The following circumstances are not normally matters covered by special

consideration:
If you need support because of a disability, mental health issue, or ongoing
medical condition, this is not normally a matter for special consideration. For this
type of long-term assistance, contact the Equality and Diversity Centre on your
campus as soon as you become aware of the need for assistance and as early in
the semester as possible.
If you have timetable clashes, exams scheduled close together, or more than the
usual number of exams because you have been allowed to overload your
enrolment, you will not be eligible for special consideration.
Special consideration will not be granted to accommodate travel plans,
attendance at social events such as weddings, visits with relatives/friends or any
discretionary activities.
Special consideration will not be granted because of avoidable issues related to
visa requirements.
Special consideration will not be granted for extensions. You should use the
Application for Extension/Reweight of Assessment form available from the Faculty
Office.

Reassessment Procedures
University policy relating to reassessment of a student’s academic work can be found
at:
http://www.latrobe.edu.au/policy/academic

You should discuss queries about performance in assessment tasks with your
lecturer in the first instance.
A request for a reassessment must be submitted within 14 days of the release of
the result for the work in question.

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Faculty of Business, Economics & Law, La Trobe University
 A request for a reassessment must be made in writing to the Head of School and
must include the following information:
- confirmation that you have discussed the issue with your lecturer.
- the outcome of that discussion.
- a clear statement of the reasons for requesting a reassessment. Desiring a
higher mark or grade, or adverse circumstances during assessment will not be
accepted as grounds for a reassessment.
The Head of School will determine whether the written request complies with the
above requirements and whether the reasons given by you warrant the assessment
being reassessed.
Should the Head of School determine that a reassessment is warranted, an
appropriate member of academic staff will be requested to reassess the assessment,
and advise the Head of School of the outcome. The Head of School will then advise
you of the outcome. If the Head of School determines that the request for
reassessment does not meet the requirements, or does not provide sufficient reason
to justify a reassessment, you shall be advised accordingly.
You have the right to appeal to the Dean, and finally the Ombudsman should you still
be dissatisfied.

FAQs

Special
http://www.latrobe.edu.au/lawman/currentstudents/faculty/resources/faqs.html
See University Regulations, Regulation 21.12 at

Supplementary
http://www.latrobe.edu.au/legalservices/legislation/regulations.html
University policies are at:
http://www.latrobe.edu.au/policy/documents/supplementary-assessment-policy-2008-
12-18.pdf
http://www.latrobe.edu.au/policy/documents/supplementary-assessment-procedures-
2008-12-18.pdf
Assessment policies (University- See:
http://www.latrobe.edu.au/policy/documents/assessment-policy-2010-02-13.pdf
http://www.latrobe.edu.au/policy/documents/assessment-procedures-2010-05-08.pdf

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Faculty of Business, Economics & Law, La Trobe University
Students with special Students with special needs whose participation in
this subject might be limited by any study
requirements are encouraged to consult the Equality and Diversity Centre. Further
information and contact details for the centre are available at
http://www.latrobe.edu.au/equality/

4. Teaching arrangements
4.1 Normal schedules
4.1.1 Lectures and

The semester consists of 13 weeks. Lectures start in week 1, and seminars start in
week 2. The lectures are taped, but the taping is not designed as an alternative to
being physically present at lectures. It is designed as a back-up for those who
cannot attend for reasons beyond their control. Also, the taping technology
sometimes fails. Therefore attendance at lectures is highly recommended. Similarly,
attendance and participation in seminars is vital to successful completion of this
subject.

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Faculty of Business, Economics & Law, La Trobe University
 LAW1LIM Bundoora-Bendigo Page 34 of 73
Faculty of Business, Economics & Law, La Trobe University
Week Commencin LECTURE TOPIC SEMINAR TOPIC LEARNING
# g OUTCOME
ADDRESS
ED

1 No seminar in week 1 1, 2
4 March
Introduction

2 What is Law? Introduction to law 1, 2, 5, 6, 7, 8

11 March
and lawyers
Case Brief assignments
distributed in seminars

3 Overview of the Introduction to case 1, 2, 5, 6, 7, 8

18 March
Australian Legal law and case briefs
Structure

4 Case Analysis Court Visits instead of 1, 2, 5, 6, 7, 8

25 March
scheduled seminars
this week

5 Introduction to Court hierarchy, the 1, 2, 4, 5, 6, 7, 8

8 April
Legislation doctrine of precedent,
and judicial decision-
making. Discussion of
the Court Experience.
Case Brief
Presentations begin

6 Development of the 1-8

15 April Interpreting
common law
Legislative
Provisions-
part 1

7 Interpreting Introduction to 1-8

22 April
Legislative legislation and
Provisions-part 2 statutory
interpretation

8 Common law
29 April Indigenous
presumptions in
Australians
legislative
and the legal
interpretation, &
system
statutory obligations &
discretions
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Faculty of Business, Economics & Law, La Trobe University

9 Interpreting statutory 1-8

6 May The Legal
offences: mens rea,
Profession
strict liability &
& Lawyers’
4.1.2 Seminar enrolment via
The times which are offered for seminar enrolment are only those on the Oasis
computer system (see below). Not all seminars on the provisional university
timetable will necessarily be scheduled for enrolment. This is because the timetable
generally flows on from the previous year, yet staff and student numbers change from
year to year.
Students self-enrol for the seminars in the week before semester begins using Oasis.
You need to be enrolled for the subject to enrol for the seminar via Oasis. Enrolment
via Oasis is on a ‘first come, first served’ basis. Students will not be able to enrol in a
particular seminar once it is full (closed). If a seminar time has insufficient
enrolments to make the class viable, it will not run and students will be advised to
change their enrolment. But unless so advised, students are to assume their
seminar will run.
OASIS will open at 6pm Thursday 28 February 2013
There are eleven time slots for the two hour weekly seminars scheduled for LIM
2013, at the Bundoora campus. Details of seminars at the Bendigo campus are
published separately.

Scheduled Seminar times & venues for 2013 are set out on page 4 of this Subject
Guide.

5. Learning resources

5.1 Prescribed and recommended texts and materials

5.1.1 Prescribed texts and

These are works from which the set reading is taken and which students are required
to purchase or obtain for their own exclusive use.
Laying Down the Law, 8th edition, 2012, Butterworths, Cook, Creyke, Geddes &
Hamer
An Australian Legal Dictionary
Students require access to:
Interpretation of Legislation Act 1984 (Vic) (available on Internet on Victorian
Legislation and Parliamentary Documents Home Page (Law Today):
<http://www.dms.dpc.vic.gov.au> - alternatively, access via library link
Australian Guide to Legal Citation 3rd edition 2010 -available online

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Faculty of Business, Economics & Law, La Trobe University
5.1.2 Recommended learning

These are texts which are not used as set reading, but which are recommended for
wider reading on particular topics. They have all been placed on reserve in the
Borchardt Library.

Bottomley and Parker, Law in Context, (Federation Press, 4th ed, 2012)
Brogan and Spencer, Surviving Law School (Oxford University Press, 2nd
ed, 2008)

Ellis, Principles and Practice of Australian Law (Thomson Reuters, 3rd ed,
2013)

Farrar & Dugdale, Introduction to Legal Method, (Sweet and Maxwell, 3rd
ed, 1990)
Hughes, Leane and Clarke, Australian Legal Institutions: Principles,
Structures and Organisation, (Lawbook, 2nd ed, 2003)
Keyzer, Legal Problem Solving (Butterworths, 2nd ed, 2003)
Krever, Mastering Law Studies and Law Exam Techniques, (LexisNexis
Butterworths, 7th ed, 2011)
Lewis and Kyrou, Handy Hints on Legal Practice, (Lawbook, 3rd ed, 2004)
Nemes and Coss, Effective Legal Research, (LexisNexis Butterworths, 5th
ed, 2012)
Pearce and Geddes, Statutory Interpretation in Australia, (LexisNexis
Butterworths, 7th ed, 2011)
Twining and Miers, How to do Things with Rules, (Cambridge University
Press, 5th ed, 2010)
Waller, Derham Maher An Introduction to Law, (LBC Information Services,
8th ed, 2000)
Watt, Concise Legal Research, (Federation Press, 6th, 2009)
Wolski, Skills, Ethics and Values for Legal Practice (Lawbook,2nd ed, 2009)

5.1.3 Online Resources

Getting started in the LMS

What is the LMS?

The LMS is an Internet based learning management system which allows you access
to learning materials and activities related to your studies from any location with
Internet access. La Trobe University’s Learning Management System (LMS) is
Moodle (Modular Object-Oriented Dynamic Learning Environment).

Navigating to the LMS login

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Step 1 Access the Internet
Step 2 Go to the La Trobe University Home Page at http://www.latrobe.edu.au
Step 3 Select the Current Students option.

Step 4 From the Students page select LMS from either Student tools or
Learning Resources.

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Step 5 Enter your username and password. These are issued at enrolment and
appear on your Statement of Account (sent to you in the mail). You should
log in using the same password as used for Student Online.

For information regarding passwords and logging on go to

http://www.latrobe.edu.au/studentlmsinfo/loginhelp.html

If you have not yet received your Statement of Account you will not be
able to login to the LMS.

Step 6 Select Students from the dropdown options under User Type.

Compatible Browsers

Browsers that are compatible with LMS (Moodle) are:

*MS Internet Explorer 7 or 8 for PCs.

*Firefox 3 or later for Macs
Safari 3 or later for Macs
Google Chrome 4 or later
Opera 9 or later; and
* = supported by La Trobe University

Using the LMS

What can the LMS be used for?

The set up of each subject is at the lecturer’s discretion and your lecturer may not
use every feature/tool in their subject.

Some typical uses of the LMS include being able to:

• Access study materials

• Communicate with your lecturer, tutor and other students enrolled in the
subject by discussion and chat
• Complete online quizzes and self-assessment activities
• Submit assignments
• Prepare individual and group online presentations using a wiki
• Create a profile, and see who is in your subject and find out a bit about them
from their profiles
• Conduct searches and use glossaries, and
• View scheduled events using a subject calendar or upcoming events block

To become familiar with the layout and use of the LMS icons and tools we suggest
that you spend some time exploring the links to see what information is available.

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If you have any difficulties accessing your online material on the LMS please speak
to your subject lecturer.

Netiquette
Netiquette is a term for standards which govern computer mediated communication.
As participants of online discussion groups, that is, discussion boards, chats or email,
all students are expected to observe the University’s Internet Code of Practice. So
that all students may feel encouraged to participate, rude, sexist or other disparaging
comments are not acceptable. Remember that discussion board and chat postings
are read by all, and that some people in the class may have very different
backgrounds, customs and experiences to your own.

Student Tracking
The system automatically records every time you access the site, and posts the first
time you log on, the most recent time you've logged on, the amount of time you've
spent on the system, as well as the number of hits you've made to various pages.
While there has been some negative publicity on the use of certain software to obtain
information about users on the open web, please be assured that, in the context and
environment of the LMS, the only information that's being recorded is your point of
participation.

What’s in the LAW1LIM LMS site?

LMS Course Tools will host the following information about the subject:

o Lecture powerpoints:
o Electronic version of the Learning Guide
o Notices to students from the Lecturer
o Access to Turn-it-in
o Valuable information for students regarding assessment tasks
o Links to current items relevant to the topics covered in the course.

5.1.3.2 Law Librarian’s Resources

Students will benefit from familiarity with the New Guide for Law Library Resources:
http://latrobe.libguides.com/law

6. Feedback and quality assurance processes

Students in 2011 were satisfied with the subject overall, and in particular with the
varied assessment regime, the court visit and report & the guest lecture program.
LIM 2012 will be evaluated by student surveys organised by the La Trobe University
Curriculum Teaching and Learning Centre. All student evaluations are anonymous.
Student Feedback on Subjects is a process where you are invited (via a paper-based
survey usually in the last lecture) to tell your teaching staff about your learning
experiences in the subject/s you studied. Your teaching staff want to hear about how
you experienced the subject. They will take your views seriously; we have already
mentioned to you what we did in response to the comments from the last group of
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Faculty of Business, Economics & Law, La Trobe University
students. Your views will assist the teaching staff to improve the subject for the next
group of students. When the survey reaches you, please make time to tell us your
views.

7. Learning effectively in this subject

7.1 Lecture/Seminar Program

The seminar program runs independently of the lectures – seminars ARE NOT
tutorials based on the lecture material. The seminar program is largely skills-based;
students will be involved in hands-on learning involving important legal skills such as
case analysis and legislative interpretation. Much of the material in seminars WILL
NOT be presented in lectures. Students should ensure that they follow the seminar
program schedule detailed in this Subject Guide.

7.2 Lecture slides and lecture

Perusing the lecture slides and lecture notes on the web frees students from the urge
to ‘write everything down’ in an unreflective manner in lectures. It allows students
who have unavoidably missed a lecture to make up for what they have missed.
However the lecture notes should not be used inappropriately. They are not provided
as a substitute for attending lectures. The lectures as delivered are not read out from
a script and students who do not attend the lectures will miss out on the personal and
direct instruction and motivation afforded by attendance and good listening in the
lecture theatre.
7.3 Independent Learning

University study is primarily an independent experience in which you will be expected

to take responsibility for your own learning. Seminars are designed to provide you
with a forum in which you can ask questions based on your own work, rather than a
place in which concrete answers are given to set questions. Indeed, often the
questions raised in legal materials do not have one concrete answer, but various
possible answers, with lawyers and courts seeking justification for the decisions that
are made. In order to optimise the learning experience then, students need to have
engaged with the materials before class, and come to class prepared to ask and
answer questions. Seminar leaders will choose which problems to deal with in each
seminar, but you will be expected to have worked towards solving all of the questions
raised in the lecture and seminar guides regardless of whether they are directly
covered in class. IF YOU HAVE QUESTIONS ABOUT ANY OF YOUR ANSWERS,
you are expected to raise these questions with your seminar leader, preferably in
class. Remember, there are no stupid questions – and if you have a question,
chances are, the same question has also occurred to many of your fellow students –
so please do not be afraid to raise your hand and ask. You can also contact your
seminar leader during their office hours or by appointment, to clarify questions raised
in your work.
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Faculty of Business, Economics & Law, La Trobe University
7.4 Getting Feedback on your

As university study is primarily student- centred and student- driven, students should
be aware of the importance of receiving regular feedback on their learning
development and progress. Much of this feedback is informal in nature and
students are responsible for seeking it out. Students can receive effective
feedback from fellow students either in class, or in their private study groups, or by
participating in class discussions and listening to comments by their fellow students
and their seminar leader. It is in students’ best interests not to wait for formal
feedback, such as comments on written assessment, or their final grades.

7.5 Participate in all the learning

Students should succeed in this subject if, having due regard to the advisory study
timetable below, each week they conscientiously study the subject at two levels:
The ‘lecture level’. By listening carefully to the lectures, students become
acquainted with the general principles of the subject. They also learn the
emphasis placed on particular parts of the prescribed reading. Without listening
to the lectures you will not learn fully how the subject is structured. The subject
is not the same as any textbook. It is unique in certain respects.
The ‘seminar level’. A body of knowledge gained at the lecture level is
insufficient to pass the subject. Students need to be able to apply that
knowledge. By participating in seminars, students practise their techniques and
have the opportunity to obtain feedback on their written and oral work from their
seminar leader.

7.6 Become a member of a private study

Research shows that students who learn co-operatively learn more effectively. If you
become a member of a private study group you can, among other things:
discuss the questions in the Week-by-Week Learning Guide (even if not discussed
in the seminars)
discuss the readings for lectures and seminars
work on problem solving structures
work together on the exercises in LDL
Brainstorm questions arising from the lectures and seminars
Discuss strategies for assessments such as the examination

One important tip: never show your written work for a piece of assessment to
another student.

7.7 Self assess to promote your learning and to obtain

Students have a number of opportunities to obtain feedback on written work during

semester time. They include:

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Faculty of Business, Economics & Law, La Trobe University
 preparing written answers for seminar questions in advance of the seminar, and
comparing your answers to those discussed in the seminar
preparing written answers for the seminar questions and comparing your
answers to those of other members of your private study group
Making use of the resources in LDL such as Exercises, Web Quizzes, Citation
Tests and Flash Cards

7.8 Academic Language and Learning

Students are encouraged to attend workshops run by the ALL unit. The Law School
contact at Bundoora is
Ms Suzanne Fegan
School of Law
Phone: 94791168
Email: [email protected]
Suzanne will be running the following ‘one off’ workshops for first year law students
this semester

Academic Speaking Wednesday 13 March 9-10am MB 362 A

Academic Writing for Law Wednesday 20 March 9-10am MB 466A

For any questions regarding the workshops, including whether they will be available
online, please contact Suzanne directly.

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 8. Lecture & Seminar Outlines, Readings and
Seminar Questions
You may not complete all of the questions and problems listed below in your weekly
seminar. Students may wish to tackle the remaining questions in their private study
groups.
Seminars begin with a student led discussion of the lecture and seminar readings.
Where a prescribed reading is not the text Laying Down the Law (LDL) students will
find the reading on electronic reserve.

WEEK 1

LECTURE: Introduction and Library Research Skills

Outline
This lecture outlines the structure of the Subject and explains the way the Subject is
to be conducted. Law Librarian Dennis Warren will instruct students on library and
research skills and the online quizzes.

Learning Objective 2

NO SEMINARS IN WEEK ONE.

WEEK TWO
LECTURE: What is Law?

Outline

This lecture outlines some of the philosophical origins of law. We consider

questions such as what we really mean when we refer to ‘law’, how
concepts of law differ in time and place, what characterises the
western concept of law, with reference to concepts such as natural
law, the purposes behind law and whether we actually need law.

Learning Objective 1, 7
Prescribed Reading
L. Waller An Introduction to Law, Chapter 12
Michael Kirby ‘The Rule of Law Beyond the Law of Rules’
Kenneth Petress ‘The Benefits of Group Study’
LDL chapter1
Additional reading
H. Hart The Concept of Law 1994 (Clarendon Press: Oxford)

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Faculty of Business, Economics & Law, La Trobe University
SEMINAR: INTRODUCTION TO LAW AND LAWYERS

Required Reading

Mosher ‘Legal Education: Nemesis or Ally of Social Movements?”

LDL chapters 1 & 2

General questions
1. What skills do you expect to be taught in the LIM course?
2. How do students learn these skills?
3. What knowledge needs to be learnt? What knowledge is assumed?
4. What is law?
5. What is law for?
6. In what circumstances should law change?
7. What is the relationship between law and justice?
8. What is the relationship between law and morality?
9. What is the relationship between law and religion?
10. What is the role of lawyers in regard to law?
11. What is the ‘rule of law’?
12. Is the rule of law essential? If so, why?
13. Does the rule of law guarantee ‘a just and fair society or even ... fair outcomes in
particular controversies’ (see Kirby reading)
14. What is ‘natural justice’? Procedural fairness, desion maker is impartial.
15. Are the concepts discussed in 11 & 12 above important, or are they ‘legal
motherhood’ statements?
16. Why is ‘equity’ an integral part of our law? (see LDL pp21-22)
Teamwork
1.What is teamwork?
2.What are the benefits and limitations of working in a team?
3.Consider two applied examples of teamwork.
4.When working in a team, what kinds of issues may arise?
5.What would/should you do if you find there is an ‘issue’ in your team?
Questions on Plagiarism
1.What constitutes plagiarism?
2.What forms does plagiarism take?
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Faculty of Business, Economics & Law, La Trobe University
3.How often is plagiarism detected?
4.What are the consequences of plagiarism?
5.How can a student avoid plagiarism?

Questions on Mosher
1.What are the traditional features of lawyering, according to the author?

2.Why does the author find them to be troubling?

3.Mosher says that analysing the appellate court decision is the core of legal
education [in Canada]. What does she mean by this?

4.What “broad-brush” criticisms does she make of legal education?

5.What, overall, is the thesis or main point of this article, as you see it? Do you
accept her thesis in whole or in part? Why or why not?

6.After considering her claims, what do you think are some of the strengths of a
course such as LIM, and what do you think are some of its limitations?

Learning Objective 1, 5, 6, 7, 8

WEEK THREE
Outline
LECTURE: Overview of the Australian Legal This lecture focuses on
providing students with
an overview of the different components of the Australian legal structure. Australia
inherited its legal system from England, and as such, we share many similarities with
English legal traditions. The Australian Constitution specifies the nature of the
separation of powers, providing the Courts, Parliament and Government each with its
own distinct duties and powers. Flowing from each of these bodies are different
sources of law – the common law (the law gained from the doctrine of precedent as
established in the court hierarchy), legislation (from Parliament, the predominant
source of law today), and regulations and other forms of law handed down by the
executive.

Learning Objective 1, 7
Prescribed reading
LDL chapters 2 & 3

SEMINAR: INTRODUCTION TO CASE LAW AND CASE BRIEFS

Required Reading
LDL chapter 5
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Faculty of Business, Economics & Law, La Trobe University
 R v Wilson [1996] 3 WLR 125
MacAdam and Pyke Judicial Reasoning and the Doctrine of Precedent in
Australia pages 33-60

Further/ Background Reading

On the general topic of case law, the following (on electronic reserve in the library)
are useful for further or background reading:
Waller, Introduction to Law ch 11
Cross and Harris, Precedent in English Law ch 6
Farrar and Dugdale, Introduction to Legal Method ch 7

Introduction to Case Law

Some fundamental terms
Use a legal dictionary to explain the meaning of the following terms:

case law holding appellate

judge-made law question of law jurisdiction
common law question of fact appeal on the
merits – hearing
statute law material facts
federal jurisdiction
judgment procedural law
superior court
order law report –
published account criminal jurisdiction
reasons for
judgment of civil jurisdiction
ratio decidendi headnote intermediate court
obiter dictum precedent lower courts
issue stare decisis Full Court
original jurisdiction specialist
jurisdiction

Understanding the parts of a judgment

Consider the case of R v Wilson [n996] 3 WLR 125

1. Who brought the action?

The appelant Alan Thomas Wilson

2. On what day was the hearing before the Court?

Feb 23rd, 1996

3. On what day was judgment delivered?

29th February

4. Who constituted the court for the purposes of this case?

The judges names
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5. Identify the headnote. What does it contain? Who wrote it? Can it be cited in
court? No, most of the times its written by a reporter which is not legal authority. It
contains key words that sums up what the case is about.

6. Identify the catchwords within the headnote. What is their purpose? How are
they structured?

7. Who appeared as counsel?

8. What does “Cur. adv. vult.” mean? Court wishes to consider the case. Ex temp
ore – on the spot

9. Look at each paragraph of the judgment. Identify the aspect of the case with
which each paragraph is concerned (Material facts, procedural history, issue, etc).

Understanding a Case Brief

What is a case brief?

A “case brief” is a lawyer’s summary of the key parts or features of a court’s judgment
in a particular case. (Case briefs are also sometimes called case notes or case
summaries or case analyses.) A case brief should be concise and identify the key
parts of the judgment in an objective and non-evaluative way. Unless required, you
should not normally add your own commentary to the case or pass judgment on it, as
the audience simply wants to know, in a nutshell, what the case is on its face, not
your opinion about it. Critique and commentary on cases is, of course, important. But
that is not the immediate task here.

You should assume your audience is a fellow lawyer (and not, e.g. a client who may
have little understanding of the law). But write in a plain, straightforward way. Use
correct legal terminology, but avoid verbose and convoluted “legalese”.

Case briefs are not always simple or easy to write, as a degree of interpretation and
analysis of the case is often needed. Exactly what is required in a case brief will
depend on the context, but for the purpose of Legal Institutions and Methods, we will
assume the following model for a case brief. (We will assume that a court made the
decision in question, but note that this model applies equally as well to tribunal
decisions.)

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 Case brief model

1. Citation Give the correct citation for the judgment.

2. Court Identify the names of the court and of the particular

judge(s) giving the judgment

3. Material Facts Outline very briefly the factual circumstances which give
rise to the issues ultimately adjudicated on and material to
the court’s holdings.

4. Procedural Outline very briefly how the dispute got to the court,
History including the nature of the action, the remedy sought, the
process by which the case was commenced (e.g. writ,
application, police charges, etc), and (if the matter is on
appeal) any lower court decisions already taken in the
matter.

5. Issues Identify clearly and precisely the legal or factual issue(s)

(i.e. questions) addressed by the court arising from the
facts.

6. Holdings Identify the decisions the court made on those issues (i.e.
its answers or conclusions). (Also known as “held
points”.)

7. Reasons Expound concisely the court’s reasons for reaching those

answers/conclusions. This is the ratio decidendi: any
“indispensable factor” in the court’s reasoning to its
conclusion. These should be taken directly from the
judgment with care. Some degree of paraphrase may be
needed, but be accurate. Where there is more than one
judge, be clear as to who stated the reasons, and whether
they were made by the majority or minority.

8. Additional Identify and expound comments or observations made by

comments the court that are not essential to the final decision, but
which are worth noting. These are “obiter dicta” (remarks
made in passing).

9. Order(s) Identify what the court’s final order(s) were, i.e. what it
ordered to be done (or not done) as the way of disposing

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 of the matter.

You should follow this model in your Case Brief Presentations (which begin in
the seminar for Week 5).

Note that the table format used above is just for explanatory purposes here. Your
written case briefs should not use this table format. It is desirable, however, that you
use the above headings.

It may not always be possible to provide all of these various pieces of information for
each case you come across. For example, it may not always be possible to clearly
separate ratio decidendi from obiter dicta, or to distinguish the held points
(conclusions) from the reasons for them, or to identify much of the procedural history.
Also, it can sometimes be necessary to make explicit what is only implicit or assumed
in the actual written text.

Questions on the case brief model

1. Why is each step in the above model useful? How is knowledge of each step
important to understand the case? How are the steps interconnected?

2. In the light of Mosher’s article, what are the limitations of a case brief in terms of
turning out graduates who will “enhance … the emergence, flourishment, and
objectives of social movements”? Pg 624 – students are encouraged to
Activities
Prepare a case brief following the model shown above on Hart v Rankin 144 [1979]
WAR (see LDL pg 111).

WEEK FOUR

LECTURE: Introduction to Case

Outline
In seminars students engage in case analysis. Important concepts such as ratio,
obiter, court hierarchies, and the doctrine of precedent are discussed. Whilst this
lecture builds on the foundational skills taught in the seminar in week 3 which are
mainly descriptive, the focus of this lecture is evaluative, critical and analytical. The
lecture uses the English case of R v Wilson (set out in SM 173) as a vehicle to
demonstrate to students that lawyers concern themselves with much more than
analysing a case in terms of its key facts, procedural history, issues, holdings, result
and precedent value. Lawyers also consider the legal, ethical, economic, political
and/or social issues raised by a case, its impact in the context of particular areas of
law as well as its wider effect.

Learning Objective 1, 4, 7
Prescribed reading
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 LDL chapter 6
R v Wilson (1996) WLR 125

Additional reading
Krever, ch 3.
Waller, ch 11 (legal reasoning)

COURT VISITS THIS WEEK-NO SEMINARS IN WEEK 4

Students may wish to consult S Beattie The Law Workbook 3rd ed Federation Press
2010. Chapter 7 focusses on a Report on a court visit.

WEEK FIVE

LECTURE: Introduction to Legislation and Statutory Interpretation

Outline
This lecture introduces students to legislation (one of the two main sources of law)
and the legal institutions that produce legislation: Parliament and the Executive
Government. The lecture will (i) consider what kind of law “legislation” is, (ii) explore
what kind of legal institutions these makers of legislation are, and (iii) provide an
overview of the legislation-making process.
The lecture also discusses the need to interpret legislation and provides an
introduction to statutory interpretation.

Learning Objective 1, 4, 7
Prescribed Reading:
LDL chapters 8, 9
Jim Spigelman ‘The Intolerable Wrestle: Developments in Statutory
Interpretation

Additional Reading:
Hughes et al, Australian Legal Institutions ch 10
Student s may wish to explore the website of the Office of the Chief Parliamentary
Counsel (Vic) at www.ocpc.vic.gov.au, and read the FAQs

SEMINAR: COURT HIERARCHY, THE DOCTRINE OF PRECEDENT &

JUDICIAL DECISION-MAKING AND THE COURT EXPERIENCE

Case Brief and Presentations begin.

Required Reading
LDL chapter 7
Court Hierachy maps, LDL pg 546-7
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 Zander The Law Making Process 262-71 & 274-6
Mc Barnet Conviction: Law, The State and the Construction of Justice 143-
149 & 150-153
Carlen Magistrates’ Justice 21-31 & 37-38
Garfinkel Conditions of Successful Degradation Ceremonies
Economides Eyes on Law: Making Legal Research, Law and Justice Visible
86-90

Questions
Court Hierarchy
1. What court hierarchies are there in Australia?Federal and state hierachy. What
hierarchy exists in England? Has one hierachy – pg 551 Why are Australia’s court
hierarchies more complex than in England? Parliament delegates law making
powers to state and federation means there are state courts.

2. Examine the English court hierarchy. Which court was responsible for the
following cases?
Donoghue v Stevenson
Allcock v Chief Constable of South Yorkshire
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 (LDL p130)

3. What is the rationale or point of a hierarchy of courts?

4. Are any of the cases listed in question 2 above potentially binding on a single
judge of the Supreme Court of Victoria? Give reasons. No, different jurisdiction.

5. Which courts, interpreting which laws, would be able to create a binding

precedent on a single judge of the Supreme Court of Victoria determining whether
a person had committed an offence against a provision of Victorian statute law?
High court, full supreme crt and crt of appeal

6. Examine the court hierarchies set out in LDL pg 546. Is there an appeal as of
right to the High Court from the Federal Court and the State Supreme Courts?
Yes

The Doctrine of Precedent

7. Outline the doctrine of precedent.
8. What justifications are made for the doctrine of precedent? Efficiency, certanity,
consistancy, justice and predictability
9. What are the factors which prevent courts making law or limit the extent to which
they may make law (especially as judges see it)? Wait for case to come before
them, retrospective, binding precedants
10. What are disadvantageous aspects to the doctrine of precedent? Outdated
precedant,
11. Are Privy Council decisions handed down before the 1986 abolition of appeals to
that body potentially binding in Australian courts today? No
12. Are Australian courts bound by their own decisions?
13. Which judges do not set precedents?
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Judicial Decision-Making
14. Explain the difference between matters of fact and matters of law. Matters of fact
don't make precedants, point of law appeal is common, matter of law are
genarally supported by public justification.
15. What are the different ways a court can avoid what would otherwise seem to be a
precedent? Do you think these methods are reasonable? Are any unreasonable?
16. How do appellate courts create law? What should guide appellate courts when
they are faced with an issue that is not covered by settled law?

Complete Exercise 7 LDL p 188.

The Court Experience

In the second part of this seminar, we will take the opportunity to discuss the Court
Report and your visit to court. In particular, the “court experience” will be discussed in
the context of the three articles listed above (Mc Barnet, Carlen & Garfinkel).

Students should also consider the following:

1. The physical lay out of a court room.

2. In a criminal proceeding, what is the importance of the accused relative to

the other parties?

3. The use of language in the court room. Is legal jargon used? If so, what is
the effect of the jargon of the parties? Discuss the effect of the use of
legal jargon on the accused in a criminal matter.

4. Is there a “sense” of law as a special, powerful coercive mechanism? If so

how is this demonstrated?

Learning Objective 1, 3, 4, 5, 6, 7

WEEK SIX

LECTURE: Interpreting Legislative Provisions-part

Outline
In this lecture we continue to develop our discussion on statutory interpretation.

Learning Objective: 1, 3, 4, 7

Prescribed Reading:
LDL Chapters 9 &10

Additional Reading
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 Bagaric and Arenson Criminal Law in Australia 2007 pages 501-530
Proudman v Dayman
He Kaw Teh v R
Allen v Subjected Carpet Mills
L Waller and C Williams Criminal Law Text & Cases (11th ed, 2009) pp 826–
871

SEMINAR: DEVELOPMENT OF THE COMMON LAW

Required Reading
Donoghue v Stevenson
Hill v Chief Constable of West Yorkshire
Alcock v Chief Constable of South Yorkshire
LDL chapter 5

Development of the Common Law: negligence as a case study

In this seminar we consider the ways in which the common law develops through
legal decisions over time, taking the development of tort of negligence as an
example.

“Torts” are legal wrongs that come within the courts’ civil (as opposed to criminal)
jurisdiction. One of the most important tort or legal wrong is that of negligence. This
cause of action arises where a person has a duty of care towards another person
but, through breaching that duty, they cause damage to that other person.

The modern tort of negligence springs from the famous “snail in the bottle” case of
Donoghue v Stevenson in 1932, and evolved through numerous subsequent cases.
We look at two such later cases to see how the tort of negligence is said to apply (or
not) to different factual situations. (Note that we are only reading extracts from these
cases.)

The purpose of this examination is to help you develop a sense of how the common
law develops partly by way of a “dialogue” between past and present judges as they
attempt to provide reasoned justifications for their decisions.

Questions on Donoghue v Stevenson

1. What facts would you regard as essential? What facts seem unimportant?

2. Compare the approaches of Lord Buckmaster and Lord Atkin.

(a) What do they say about the development of general common law
principles?

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 (b) Compare the ways they treat earlier cases such as Heaven v Pender,
George v Skivington and Winterbottom v Wright?
(c) What attitudes do they display in relation to any social need for a
remedy in this case?

3. What differences can you discern between the reasoning of Lord Atkin and
Lord Macmillan?

4. What did Lord Buckmaster mean when he said “if one step why not fifty?” Did
Lord Atkin address it?

5. Do you think the majority ratio decidendi is properly confined to snails, to

bottled drinks, to food, to household articles, to any manufactured goods, to
repaired goods, to any goods or services?

6. Mrs. Donoghue was a shop assistant. If she had been unable to turn up the
following day due to gastro-enteritis, and her employer therefore had to close
the shop and consequently lost a pound in profits, would Mr. Stevenson be
liable for that loss, in the light of Donoghue v Stevenson?

Questions on Alcock v Chief Constable of Sth Yorkshire

1. Who were the plaintiffs/appellants? What were they seeking? What was the
legal basis or bases for their claims?

2. How did Lord Oliver decide the appeals? How would you summarise his
reasons for his decisions?

3. What did Lord Oliver mean when he said that “in the end, it has to be
accepted that the concept of ‘proximity’ is an artificial one which depends more
upon the court’s perception of what is the reasonable area for the imposition of
liability than upon any logical process of analogical deduction” (at 926 )? If that
is so, what role do precedent cases play? And how are potential defendants to
predict how a future court will perceive what is reasonable? What is the
process of analogical reasoning that Lord Oliver was referring to?

4. Lord Oliver at [1991] 4 All ER 907 (at 932) speaks of “considerations of policy”.
In what sense is he using the term “policy”? How does “policy” influence
judicial decision-making? How should it? Is policy properly only a matter for
legislatures?

Questions on Hill v Chief Constable of West Yorkshire

1. What is the ratio behind Lord Diplock’s decision in Dorset Yacht Co Ltd v
Home Office as stated in Hill?

2. What principal differences between Dorset and Hill are identified in Lord
Keith’s decision?

3. What form of judicial reasoning is demonstrated here?

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 4. Are there any significant differences between Lord Keith’s decision and that of
Lord Templeman?

5. Do you think that there is a strong ratio in Hill? Why? What is it?

6. Do you think that Hill is a significant development of the principle of Donoghue

v Stevenson? Why?

Learning Objective 1, 3, 4, 5, 6, 7

WEEK SEVEN

LECTURE: Interpretation of Legislation –part

Outline
This lecture extends the concepts considered in the preceding lectures related to
statutory interpretation

Learning Objective:1, 2, 3, 4

Prescribed reading
LDL 11-13

SEMINAR: INTRODUCTION TO LEGISLATION & STATUTORY INTERPRETATION

Required Reading
LDL chapters 8 & 9
Jim Spigelman ‘The Intolerable Wrestle: Developments in Statutory
Interpretation’
Refer to the Crimes Act 1958 (Vic), either print or online versions (the latter is
accessible via the LIM LMS page.

Background and Further Reading

Farrar and Farrar, “Legislation”, from J Corkery (ed), A Career in Law
Hughes, et al, Australian Legal Institutions, (2nd ed, 2003), ch 10

Introduction to Legislation
In addition to case law, the other authoritative source of law is legislation. Legislation
is a category of law comprising Acts of Parliament and delegated legislation. The
latter is a generic category standing for laws made by a body under the authority of
an Act of Parliament.
Questions about legislation

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1. Explain the following terms:
statute
Act of Parliament
statute law
statute law supremacy
statutory construction
statutory interpretation
delegated legislation
regulations
statutory rules
Parliament
bicameral legislature
upper house
lower house
bill
enactment
commencement
preamble to an Act
provision
code
reprinted Act
declaratory Act
consolidating Act
omnibus Act
second reading speech
explanatory memorandum
parliamentary debates

2. Who is commonly authorised to make delegated legislation?

3. What is odd about a “Henry VIII clause”?

4. Why does legislation take precedence over common law? Should this proposition
be qualified?

5. Is the legislative power of the Commonwealth and State parliaments restricted?

Explain.

6. If no commencement date for legislation is specified in the relevant Act, a “default”

commencement provision has effect. What is the default commencement date for
Commonwealth statutes? What is the source of this requirement?

7. What is the default commencement date for Victorian statutes? What is the
source of this requirement?

8. How does one refer to a particular part of an Act? Is it permissible or appropriate

to refer to an Act by its page numbers?
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Questions about the Crimes Act 1958 (Vic)

Access the latest version of the Crimes Act 1958 (Vic), either online or in print. (Do
not print the whole Act if accessing it online.)

Answer the following questions:

1. Every Act has a date in its title. What is the source of the date for the Crimes Act
1958 (Vic)?

2. Read section 3 of the Act. What does it tell us about “murder”.

3. How is the Act organised? What is its structure? Name the various Parts of the
Act.

4. Examine the parts of the Act as set out in the Table of Contents. What factors
have determined the order of the parts?

5. Is the heading to Part 1 appropriate? Can you think of a more appropriate

heading or a more appropriate way to site the relevant provisions?

6. Identify the goal or purpose of the Act. Where is it set out?

7. Who is authorised to make the Regulations in this Act?

8. Identify the section(s) that stipulate when and how regulations can be made. Why
would regulations be necessary/helpful to this legislation?

9. Give some example of delegated legislation made under the Crimes Act 1958
(Vic) (Hint: check under “statutory rules” on the Victorian Law Today website)

10. “Penalty subjects” are often mentioned in the Crimes Act 1958 (Vic). What are
they and how can their value be ascertained? (This question requires legal
research to answer. Hint: start by looking up the Sentencing Act 1991 (Vic).)

11. Find the commencement provision. When does the Act commence? What is the
Royal Assent? What effect in law does the Royal Assent have?

Complete exercise 8 LDL pg 250

Questions about statutory interpretation
1. What is statutory interpretation? Where and when is it done? By whom? Is it really
necessary?
2. What is the “golden rule”?
3. What is the ‘best’ an ‘approach’ to statutory interpretation? Give reasons for your
answer.
4. What is the ‘intolerable wrestle’ that Chief Justice Spigelman refers to (SM 121)?

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 Prepare Exercise 6 in LDL, page 243.

Learning Objective: 1,3,4,5, 6, 7

WEEK EIGHT

LECTURE: Indigenous Australians and the Legal System

Outline
The lecture this week will focus upon the relationship between Indigenous Australians
and what might be termed the “mainstream” Australian legal system. We will examine
the extent to which Indigenous legal systems and traditions that existed prior to
British settlement continue to have relevance for Indigenous Australians and how the
Australian legal system has attempted to address the reality of two, co-existing, legal
systems. We will also discuss the disturbing over-representation of Indigenous
Australians at every level of the legal system and consider the different explanations
provided for this over-representation by criminologists, legal academics and
representatives of Indigenous communities.
The lecture builds on and relates to the notions canvassed in lectures 2, 11 & 12.

Required Reading:
LDL Chapter 4

SEMINAR: COMMON LAW PRESUMPTIONS IN LEGISLATIVE

INTERPRETATION, & STATUTORY OBLIGATIONS &
DISCRETIONS

Required Reading:
LDL chapters 12 & 13
Relevant sections (see below) of the Acts Interpretation Act 1901 (Cth) and the
Interpretation of Legislation Act 1984 (Vic)

Common Law Presumptions

These presumptions are almost all designed to protect citizens from parliamentary
power. Courts have established these presumptions over time in order to help to
curtail legislative attempts to enact retrospective legislation, to breach fundamental
rights, and so on.

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Our constitutional system operates (to a greater or lesser degree) under the principle
that Parliament has legislative supremacy over case law. Thus, unless a statute is
found to be unconstitutional, courts must give effect to any clearly stated legislative
purpose. This means that the common law presumptions are only ever starting points
in interpretation — they can always be rebutted by a specific parliamentary intention
which has been made clear in the legislation itself.

Question
Why have a presumption against retrospective legislation?

What are the “fundamental rights” protected by the principle that parliament does
not interfere with fundamental rights? How was the principle used in?

What is the rationale behind the presumption that legislation does not bind the
Crown?

Why should penal provisions be strictly construed?

What effect did the presumption regarding fundamental rights have in the Coco
decision (see LDL pg 354).

Statutory Discretions and Obligations

Legislation often imposes duties, confers powers, creates rights, and so on. The
interpretation of the statutory language of such provisions is an important part of
statutory interpretation.

Questions
Explain the differences (if any) between “shall”, “must” and “may” as ordinary
English words. What ambiguities are there in the word “may”? Is it a good idea to
use the word “shall” in modern legislation?

How do s 33(2A) of the Acts Interpretation Act 1901 (Cth) and s 45 of the
Interpretation of Legislation Act 1984 (Vic) define the meaning of “may”?

A MODEL TO GUIDE THE INTERPRETATION OF LEGISLATION

As you will have discerned by now, statutory interpretation can be a complex art.
There are various approaches suggested by various writers. LDL presents one
approach (p 289). An alternative, two-stage approach, which is perhaps a little more
straightforward, has been suggested by various writers (including F Bennion,
Statutory Interpretation: A Code 3rd ed, 1997 p 454 and K Hall, Legislation 2nd edition
(2009). Do not, however, treat this as providing some strict formula to be slavishly
followed in every case.

Bennion’s approach is as follows:

1. The interpreter must decide, on an informed basis, whether there is a real
doubt about the legal meaning of the enactment.
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 2. If there is, the interpreter moves to resolve that doubt.

An elaboration of the two stage process

1. To ascertain whether there is a real doubt about the legal meaning:
Identify the relevant provision.
Read the context of the provision (both the Act and extrinsic sources to
ensure the interpreter is “informed”).
Ascertain whether there is a real doubt about the legal meaning.
o A real doubt is “substantial, and not merely conjectural or fanciful”
(Bennion, p 15). We should not be put off by “hairsplitting or unduly
recondite argument. That is the less acceptable face of legal
scholarship or advocacy. …. [We] need to be aware of hubris.”
(Bennion, p 15.) Also a proclaimed anomaly which is purely
hypothetical should be disregarded (Bennion, p 775).
o Otherwise any real doubt will suffice, e.g. if the words are capable of
more than one ordinary meaning; if the context suggests a different
meaning to the ordinary meaning the words normally bear (Hall, p
74); if the literal construction will produce gravely adverse
consequences (Bennion, p 400), or an unreasonable or unjust result
(Hall, p 74); or if consideration of the purpose raises doubts about the
intended meaning (Hall, p 74).

2. To resolve the doubt:

Frame the opposing constructions, e.g. narrow or wide (e.g. Maritime
Services Board case in LDL p 294).
Draw on the interpretative resources of the law; bring them into
consideration.
Give those interpretative criteria or guides to legislative intention weight
according to law and according to what the context requires (Bennion, p
407).
Having regard to this weighing, determine which of the opposing
constructions to favour on balance, having regard also to the duty of an
interpreter and the existing law. (Bennion, p 407)

Illustration of the model

Read the extract from Harvey v Harvey (1951) 68 WN (NSW) 241 (LDL pg 303).
Then follow the two-stage approach as applied to that case, as follows:

1. To ascertain whether there is a real doubt about the legal meaning:

Identify the relevant provision.
 Section 22(4) of the Married Women’s Property Act 1901 (NSW): “The
Judge of the Supreme Court …if either party so require, may hear any
such application in his private room.”

Read the context of the provision (both the Act and extrinsic sources to ensure
the interpreter is “informed”.
 It is apparent that the Prothonotary had done so.

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 Ascertain whether there is a real doubt about the legal meaning.
 There was a real doubt because a court official had referred a question to
the court, there being wording in the provision which arguably supported
the application’s request for a private hearing.

2. To resolve the doubt:

Frame the opposing constructions, e.g. narrow or wide.
 According to the applicant “may” should be construed as enabling, but
leaving the judge with no alternative but to accede to the request.
 The other construction was that “may” conferred a discretion on the judge.

Draw on the interpretative resources of the law; bring them into

consideration.
 The surrounding words of the provision in the same section suggested a
duty to accede: the word “require” (and the ordinary meaning that word
has) (noscitur a sociis maxim).
 The precedent of R v Mitchell put forward by the applicant.
 The purpose of the provision generally was to make it easier for the judge
to reach a just conclusion by way of a “quasi-paternal jurisdiction in his
own room”.
 The common law assumption that trials take place in open court.
 The legislative history of the Act — the Act’s English predecessor, Married
Women’s Property Act of 1870 — the word order had been reversed (“may,
if either party so require”) and this indicated a discretion.
 The wording of the Act — there was no provision for procedure for the
conduct of the proceedings in the judge’s private rooms.
 The ordinary meaning of the word “may”.

Give those interpretative criteria or guides to legislative intention weight

according to law and according to what the context requires (Bennion p 407).
 All the arguments except the first two favoured there being a discretion.
The purposive argument did not, it seems, directly bear on the issue.
 The arguments in favour of a duty were weak because the use of the word
“require” could possibly be explained by reference to legislative history as
a slip. That is, it had not been the intention to impose a duty.
 The remaining considerations all supported “may” as conferring a
discretion.

Determine which of the opposing constructions to favour on balance, having

regard to the duty of an interpreter and the existing law. (Bennion p 407)
 The legal meaning of “may” in s 22(4) was that it conferred a discretion.

Complete exercise 10 LDL pg 304.

Learning Objective: 1,3,4,5, 6, 7

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 WEEK NINE

LECTURE: The Legal Profession & Professional Liability

Outline:

The next two lectures are designed to focus on one of the central themes of our
subject, lawyering. In this lecture we will consider the nature and makeup of the legal
profession. Lawyers come from a variety of backgrounds and perform many different
professional tasks. The lecture will also introduce students to concepts relating to
professional responsibility and liability.

Learning Objective 1, 3, 7
Prescribed reading
LDL pg 30-32
I Ramsay ‘Ethical Perspectives on the Practice of Business Law’ (1992) 30 (5)
Law Society Journal 60
A Chernov ‘The Lawyer and Morality’(1991) 18 (1) Brief 6
T Greenwood ‘’Ethics and Avoidance’ (1991) Law Institute Journal 724
C Parker ‘ACritical Morality for Lawyers: Four Approaches to Lawyers’ Ethics’
(2004) 30 (1) Monash University Law Review 49
Silvester & Rule Underbelly Ch 25, on LMS.

Additional reading
L. Waller An Introduction to Law, Chapter 3
Lewis & Kyrou’s Handy Hints on Legal Practice, parts 1-4

SEMINAR: INTERPRETING STATUTORY OFFENCES:

MENS REA, STRICT & ABSOLUTE LIABILITY

Required Reading
Bagaric and Arenson Criminal Laws in Australia 2007
Proudman v Dayman (1941) 67 CLR 536
He Kaw Teh v R on LMS, see also extract page 507-523 in M Bagaric
Criminal Laws in Australia
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 Allen v United Carpet Mills [1989] VR 857

Background and Further Reading

L Waller and C Williams Criminal Law Text & Cases (10th ed, 2005) pp 705–
745 (on electronic reserve)
S Bronitt and B Mc Sherry Principles of Criminal Law (2001), pp 345–352 (on
electronic reserve)

In this seminar, as a particular exercise in statutory interpretation, students will

consider a very important common law presumption regarding the interpretation of
statutes that create criminal offences. The presumption is that mens rea (or a mental
element) is an essential ingredient of all criminal offences: see Sherras v De Rutzen
[1895] 1 QB 918.

Questions of interpretation can arise where an offence created by statute does not
explicitly refer to any particular mens rea or mental state. The two main questions to
consider when interpreting such legislation are (i) whether the presumption of mens
rea is rebutted, and (ii) if it is, whether the further presumption that the defence of
honest and reasonable mistake of fact is available is also rebutted.

The three basic kinds of criminal offence

All criminal offences contain an actus reus (or the physical element) that must be
proved by the prosecution beyond reasonable doubt. In relation to the question of
whether or not an offence also has a mens rea (or mental element), there are three
basic types of offence:

1. Traditional offence: There is a mens rea component of the offence and the
prosecution must prove it beyond reasonable doubt.

2. Strict liability offence: Here the prosecution does not have to prove a mens rea
element, BUT the defendant may avoid liability by proving that he or she made
an honest and reasonable mistake of fact, i.e. that he or she honestly and
reasonably believed certain things which were actually false but which, if true,
would have made the act innocent. (See Proudman v Dayman.)

3. Absolute liability offence: Here, again, the prosecution does not have to prove
a mens rea element, but the defence of honest and reasonable mistake of fact
is NOT available to the defendant.

Guide to interpreting statutory offences

How does one interpret a statutory provision that creates a criminal offence but has
no words denoting the mens rea?

1. Start off with the common law presumption that the offence has a mens rea.

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2. Look at the criteria set out in He Kaw Teh to determine whether this presumption
is rebutted (words, subject matter, utility, penalty).

3. If the presumption is not rebutted, then the prosecution must prove both mens rea
and actus reus.

4. If is presumption is rebutted, then prosecution must only prove actus reus.

5. Where the presumption of mens rea is rebutted, a further presumption exists that
the defence of honest and reasonable mistake of fact is available as a defence.
(See Proudman v Dayman)

6. Look at He Kaw Teh criteria (same as above) to determine if that further

presumption is rebutted.

7. If the further presumption is rebutted, then the defence of honest and reasonable
mistake of fact is not available and the offence is an absolute liability offence.

8. If the further presumption is not rebutted and the defence of honest and
reasonable mistake of fact is available, then the offence is a strict liability offence.

Note that in this process we are interpreting the meaning of the legislation in question
as such, i.e. prior to applying it to a particular case. So, at this stage, we do not yet
refer to the particular facts of a case to settle the question of whether the legislation
in question requires mens rea or allows for the defence of honest and reasonable
mistake of fact. What the law thus interpreted then requires or permits of particular
people in particular cases is then a matter of applying the law to particular facts.

So, one might interpret some legislative provision as rebutting the presumption of
mens rea but preserving the defence of honest and reasonable mistake of fact.
However, after then applying that law to a particular set of facts, you may conclude
that, though the defence was legally available, on the facts given the defendant
would not be able to make out the defence. (This has been a point of confusion to
students in the past.)

Questions
1. Explain in plain English what “mens rea” in the context of statutory offences refers
to. Does it have anything to do with “feeling guilty”?

2. What is its rationale?

3. Why doesn’t the Parliamentary drafter expressly state the mens rea requirement
(if any) for every statutory offence? Are you satisfied with this explanation?

4. What is absolute liability?

5. “If a statutory offence does not say ‘knowingly’ as one of the elements, the offence
is one of absolute liability.” True or false?
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6. What different types of mens rea (or “guilty” states of mind) are possible?

7. What general factors are taken into account by a court in determining (a) whether
an offence has a mens rea requirement and, if so, (b) what the particular
requirement is?

8. Consider the development of offences of strict and absolute liability. What

economic and social factors contributed to the “popularity” of these types of
offences?

9. Consider the concept of “justice” in relation to strict and absolute liability offences.
Has it been compromised or has it been entirely dispensed with?

10. Outline the defence of “honest and reasonable mistake of fact” developed by the
High Court of Australia in Proudman v Dayman. How does it fit in with the notion
of “taking all reasonable care and diligence” (see Allen v United Carpet Mills)?

Problems
Consider s 17 of the Summary Offences Act 1966 (Vic) which states:

(1) Any person who is in or near a public place or within the view or hearing of
any person being or passing therein or thereon—
(a) sings an obscene song or ballad;
(b) writes or draws exhibits or displays an indecent or obscene word figure
or representation;
(c) uses profane indecent or obscene language or threatening abusive or
insulting words; or
(d) behaves in a riotous indecent offensive or insulting manner—

shall be guilty of an offence.

Apply the tests for mens rea and strict liability to s 17 to determine what it is that the
prosecution must prove to be successful and whether the defence of honest and
reasonable mistake of fact is available.

Then answer the following problems based on the section.

1. Sue and Gary get right into the spirit of orientation week frivolities at Mediocre
University. They skip around the University sports oval, hand in hand, chanting
“our lecturers are wankers, our lecturers are wankers.” Could Gary and Sue be
successfully prosecuted under section 17?

2. Kevin is a keen anatomy student. He knows that it is important for him to master
drawing the human body so that he can replicate this skill on the final
examination. Kevin lives at Dork Hall, a residential college adjacent to Mediocre
University. One evening, after an eight hour study session in his small college
room, Kevin decides to go out into the University gardens to relax for a short
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Faculty of Business, Economics & Law, La Trobe University
 while. He sits on a bench near a brick fence and suddenly feels a pang of guilt
because he is slacking off from his rigorous anatomy study regime. He quickly
gets a piece of chalk from his pocket and draws (in detail) the male and female
forms on the brick wall. Should Kevin be prosecuted under section17?

3. Penny and Lenny join the ensemble cast of the Mediocre Law Review. Naturally,
the Review consists of many skits that have high entertainment value for
Mediocre Law Students and are therefore extremely “raunchy”. Many four letter
words are used and religious, educational and political institutions are continually
debased and derided. Penny and Lenny decide to practise their skits in the
Mediocre Art Gallery which they believe is closed for renovations. Unbeknownst
to them, year 10 students from Pedestrian High School attend a tour of Mediocre
University and are shown all its facilities, including the Art Gallery. The year 10
students overhear the rehearsal. Can Lenny and Penny be successfully
prosecuted under section 17?

4. Lisa is lucky enough to gain a part in the Mediocre Law Review. Her skit involves
her berating a fellow actor in Spanish. Lisa does not speak or understand Spanish
but she knows that the words she utters are probably insulting and abusive. In
fact the words she says on stage are so outrageously offensive they do not
appear in any Spanish Dictionary. The Review is staged at Mediocre University to
a capacity crowd. Can Lisa be successfully prosecuted under section 17?

Learning Objective: 1,3,4,5,6,7

WEEK TEN

Lecture: An Introduction to Legal

Outline

This lecture comprises the second part of the lectures focusing on the theme of
lawyering. The ‘law of lawyering’ is set out in legislation, rules and regulations. Yet,
this vast body of law containing statutory obligations and duties forms only a part of
the essential guide for legal practitioners. This lecture seeks to introduce students to
several paradigms of lawyering and to expose students to some of the ethical
dilemmas they may experience as legal practitioners.

Learning Objective 1, 3, 7, 8

Prescribed reading
I Ramsay ‘Ethical Perspectives on the Practice of Business Law’ (1992) 30 (5)
Law Society Journal 60
A Chernov ‘The Lawyer and Morality’(1991) 18 (1) Brief 6
T Greenwood ‘’Ethics and Avoidance’ (1991) Law Institute Journal 724

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Faculty of Business, Economics & Law, La Trobe University
 C Parker ‘A Critical Morality for Lawyers: Four Approaches to Lawyers’ Ethics’
(2004) 30 (1) Monash University Law Review 49
Re Liveri [2006] QCA 152

Additional reading
L. Waller An Introduction to Law, Chapter 3 – on electronic reserve.
Lewis & Kyrou’s Handy Hints on Legal Practice, parts 1-4

SEMINAR: USING EXTRINSIC MATERIALS TO INTERPRET

LEGISLATION & INTERPRETATION IN CONTEXT

Required Reading

o LDL chapters 10 & 11

Questions on extrinsic materials

What are “extrinsic materials”? What materials are included in this term?

1. When did the Commonwealth Parliament pass legislation to govern the use of
extrinsic materials? Explain what s 15AB of the Acts Interpretation Act 1901 (Cth)
allows.

2. Explain how s 15AB was applied in Re Shingles and Director-General of Social

Security (LDL 317)

3. What is the Victorian equivalent of the Commonwealth’s s 15AB? What is the

difference between the Victorian and Commonwealth provisions.

Questions and exercises on interpreting legislation in context

1. What does it mean in practice to interpret statutory provisions “in context”? What
things can be considered part of “the context” of a provision for this purpose?
(LDL ch 10)
2. Explain the maxims noscitur a sociis and ejusdem generis. How do these maxims
work in practice? (see LDL chapter 10)
3. What are the “other parts” of legislation that may be referred to?
4. What do expressio unius est exclusio alterius and generalia specialibus non
derogant mean?

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Faculty of Business, Economics & Law, La Trobe University
 Complete exercises13-15 LDL as selected by seminar leaders.

Learning Objectives: 1, 3, 4, 5, 6, 7

WEEK ELEVEN

LECTURE: Access to Justice

Outline

The concept of “justice” could be said to be the underpinning of a legal system.

Access to the courts is necessary to ensure that individual rights are protected and
that governments and other bodies are held accountable. In this lecture we will
examine the concept of “justice” and access to justice. We will introduce the doctrine
of equity which sought to overcome the strict legal rigidity of the common law courts.
The lecture will give an introduction to the reasons many Australians do not have
access to the law and legal system and examine various developments aimed at
achieving access to justice including the statutory based government Legal Aid
schemes, community legal centres and Aboriginal Legal Services, and case law and
legislative development including the High Court Case of Dietrich v R (1992) 177
CLR 292 (LDL pg 131) and s 360 A Crimes Act 1958 (Vic). Students should note the
recent decision of Forrest J in MK v VLA [2013] VSC 49.

Learning Objective 1, 4, 7
Prescribed Reading
Marc Galanter ‘Why the Have’s Come out Ahead: Speculations on the Limits of
Legal Change’ (1974) 9 Law and Society Review 95
Nick Pappas ‘Just Outcomes and the Magistrates’ Court’ (Speech 1995)
Liz Curran ‘Community Legal Centres lead on law Reform’
http://www.latrobe.edu.au/news/articles/2008/opinion/commsubjecty-legal-
centres-lead-on-law-reform

Additional Reading
Community Legal Centres in Australia at http://www.naclc.org.au About CLC's
“Your Day in Court”

Mary Anne Noone, Stephen A Tomsen Community legal centres: autonomous

and alternative, Chapter 7

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Faculty of Business, Economics & Law, La Trobe University
 Victoria Legal Aid website http://www.legalaid.vic.gov.au/publications.cfm?
publication=1

SEMINAR: AN OVERVIEW OF THE LEGAL PROFESSION & LEGAL

ETHICS

Required Reading
I Ramsay ‘Ethical Perspectives on the Practice of Business Law’ (1992) 30 (5)
Law Society Journal 60
A Chernov ‘The Lawyer and Morality’(1991) 18 (1) Brief 6
T Greenwood ‘’Ethics and Avoidance’ (1991) Law Institute Journal 724
C Parker ‘A Critical Morality for Lawyers: Four Approaches to Lawyers’ Ethics’
(2004) 30 (1) Monash University Law Review 49
Re Liveri [2006] QCA 152

DISCUSSION QUESTIONS
1. What are the attributes of a good lawyer?

2. What was the basis of the Legal Practitioners’ Admissions Board opposition to
Liveri being admitted as a legal practitioner?

3. What was the decision of the Supreme Court of Queensland in the Liveri
case?

4. Do you agree with the decision? Why?

5. What are some common law and statutory rules providing for or governing
ethical conduct mentioned in the articles by Ramsey, Chernov and
Greenwood? What is the difference in status between these rules and the
kind of ethical obligations advanced by Greenwood and by Ramsey’s legal
system advocate role? If one were to accept the view of Ramsey and
Greenwood, why wouldn’t the legal rules be adequate?

6. Chernov is concerned at two separate developments. What are they? Why is

he concerned? In what circumstances does Chernov concede that ethical
action should or may be taken? What conception of the rule of law and
understanding of law underlies Chernov’s position?
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Faculty of Business, Economics & Law, La Trobe University
 7. Chernov argues, at page 9 of his article, that “a lawyer is not obliged to judge
the morality of the activity in respect of which he or she proposed to proffer
legal advice”. What is Greenwood’s response? Does he agree or disagree?
Why does he take that view? How might Chernov respond to Greenwood’s
critique?

8. What, for Greenwood, is the source of the ethical obligations? What are his
ethical principles? Is there a potential problem arising from the nature and
source of these ethical obligations?

9. Explain the difference between “the client advocate role” and the “legal system
advocate role” as detailed by Ramsey.

10. Does Chernov’s view equate with Ramsey’s “client advocate role”?

11. Locate Greenwood’s position amongst the two models discussed in Ramsey.

12. Discuss Parker’s four approaches to legal ethics. Consider how a lawyer can
use the four approaches. Which approach has the most merit? Why? Which
approach has the least appeal? Why?

Problems
1. If a client asks you for advice about whether they have breached the law (say
the Crimes Act (1958) Vic), is it part of your duty to advise them about the
risks of detection? If not, does the situation change if the client explicitly asks
for such advice? Compare the responses or probable responses of Gordon,
cited in Ramsey and Chernov.

2. Assume you have a client who comes to you wanting quick advice about
“appealing” the cancellation of her travel agent’s licence. The agent is already
out of time to make an application as of right to the Supreme Court on the
point of law or to the Victorian Civil and Administrative Appeals Tribunal.
However, a late application may possibly be accepted. Should your advice
extend to the merits of complaining to the Victorian Ombudsman where no
such time limits apply, even though it is not strictly speaking an appeal but
involves the formulation of a recommendation to the decision maker which in
theory may or may not be accepted?

Learning Objective: 1, 3, 4, 5, 6, 7, 8

WEEK TWELVE

Lecture: Introduction to Public Interest Law

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Faculty of Business, Economics & Law, La Trobe University
Outline

This lecture integrates several themes of the course. Students should consider how
the application of the legal skills taught in the course (case analysis and statutory
interpretation) fit into a holistic practice of law. A broad approach to legal practice
necessarily involves an appreciation of important concepts such as legal pluralism,
legal ethics, access to justice, the representation of indigenous people and
international human rights obligations. The privileges associated with legal practice
are examined in the context of lawyers’ professional responsibilities to the
community. The notion of public interest law is considered and examined in the
applied context of best contemporary legal practice.

Learning Objective 1, 4, 7

Prescribed reading
Please browse the PILCH website: www.PILCH.org.au, particularly the latest
edition of PILCH Matters.

SEMINAR: REVISION & EXAM PREPARATION

This seminar will be devoted to revision and exam preparation. Seminar leaders will
advise students about the format of, and required reading for this seminar.

WEEK THIRTEEN

LECTURE: Subject Overview & Revision

Outline:
In this lecture we will draw together the threads of the lecture and seminar programs,
and focus on examination revision.
Learning Objective 1-7
Students should prepare exercises 11-15 LDL in preparation for the revision
lecture.

Students should refer to: Steven Tudor La Trobe Law Short Guide to Answering
Legal Problems http://latrobe.libguides.com/law

SEMINAR: REVISION & EXAM PREPARATION

This seminar will be devoted to revision and exam preparation. Seminar leaders will
advise students about the format of, and required reading for this seminar.
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Faculty of Business, Economics & Law, La Trobe University
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