Assignment Task
Outline of the Required Task
The legal skills tested in this assignment are primarily those of legal research and reasoning. Lawyers must be able to find relevant legal materials that are authoritative in providing the lawyer, and her client, answers to a specific legal question or questions. That answer may include a conclusion that the law or its application is unsettled or uncertain in a particular matter. Lawyers must also be able to effectively structure their findings logically and demonstrate an understanding of the relevant legal principles in a way that clearly and persuasively support their conclusions. The purpose of this exercise is to develop these skills: students are to act as solicitors who have been instructed to research legal questions and to provide a summary opinion of their findings.
Of course, to effectively explain the relevant legal position, lawyers must also be able to communicate clearly, intelligibly and persuasively. Legal writing is therefore also a relevant skill being assessed in this assignment.
The word limit is a maximum of 1800 words, excluding any footnotes; trivial variations above that length of less than 5% will not be penalised. No bibliography is to be included.
The Task:
Students need to answer ONE ONLY of the questions set out below.
Given the limitations imposed by the word count limit, this requires you to be succinct and accurate in support of your opinion and conclusions; however, do not ignore qualifications and doubts that exist as to your propositions of law. Use footnotes to support your propositions of law and any qualifications or doubts that may exist.
The criteria for marking are set out below.
ASSIGNMENT QUESTIONS (Choose ONE ONLY)
In Eaton v Rare Nominees Pty Ltd (2019) 2 QR 222 [63], Philippides JA stated as follows:
In the context of contractual relationships, it has been observed that, while contractual labels have been held not to be determinative as to whether a relationship is fiduciary, express contractual exclusions of fiduciary duties have generally been effective.
Discuss the correctness of this statement as a general proposition of principle. Also discuss whether that proposition applies equally to cases in which fiduciary duties arise based on an established fiduciary relationship, as opposed to one based on the facts (as, for example, in the context of joint ventures). Further, consider this statement with reference to the decision in Eaton itself that no fiduciary duty arose in that case because the terms of the contract excluded such duties arising. Is that decision correct, in your view? Your discussion should consider criticisms that might be made of Philippides JA’s proposition, including but not limited to views expressed by Professor Finn, as noted by Philippides JA.
TIP: Philippides JA does not specifically cite the source in which Professor Finn expresses his criticisms. These can be found at P?D Finn, Fiduciary Obligations: 40th Anniversary Republication with Additional Essays (Federation Press, 2016) Ch 26, particularly [804] onwards, reproducing an article also found at Paul Finn, ‘Fiduciary Reflections’ (2014) 88 ALJ 127.
Fiduciaries who serve two principals at the same time, even with the express or implied consent of those principals, may in some circumstances need to withdraw from one or both of their retainers/positions or to take other appropriate steps, to avoid conflicts of duty and duty. Discuss the correctness of this statement, including what steps, if any, may be necessary to be taken to avoid such conflicts. If that statement is correct, did the House of Lords pay sufficient regard to this statement of principle in Kelly v Cooper [1993] AC 205 and was that case correctly decided considering that principle?
TIP: You need to consider cases that have been critical of Kelly v Cooper and, if you consider Kelly v Cooper to be correctly decided, how that case is distinguishable from factual scenarios in which conflicts of duty and duty have been found to arise. Farrington v Rowe McBride & Partners [1985] 1 NZLR 83 may provide you with a useful starting point for discussion of some of the general principles applicable to conflicts of duty and duty and how to avoid them.
Criteria for Marking
Students need to comply with the ‘General Instructions’ outlined below. Further, the following criteria for marking, measured against the grade descriptors set out in the Detailed Study Guide, will be applied (there is no specific weighting given to each; however, criteria A, B and C are the most important). Below each criterion, specific factors relevant to the assessment, at either end of the spectrum of grading (HD to Fail), are given by way of indication:
The quality and accuracy of the analysis of precedent, statutes and other materials.
An HD paper needs to demonstrate the following to a high level of achievement: accurate and precise statements of legal principles/rules relevant to answering the question; accurate identification of the sources of those principles; appropriate use of legal principles to further the analysis; capacity to identify legal uncertainties, qualifications and open questions; clear identification of jurisdiction, courts and judges of cases relied upon.
A Fail will not achieve the above criteria to a satisfactory level and is likely to be evidenced by some combination of the following: inaccurate or imprecise statements of legal principles/rule; numerous errors of fact or law or both; inappropriate use of legal principles or a failure to embed those principles in context; an inability to identify legal uncertainties; unclear identification of jurisdiction, reliance on unauthoritative sources, etc.
The appropriateness and sufficiency of the primary and secondary resources engaged with.
An HD paper needs to demonstrate the following to a high level of achievement: identification of any statutory provisions and some of the key cases relevant to answering the legal problem; understanding of relevant legal principles and concepts and how they operate; evidence of research to find further materials that apply those principles/rules; appropriate use of secondary sources to support any analysis and interpretation of those sources; appropriate and accurate referencing of sources including the use of pinpoint references to pages/paragraphs of sources where materials are quoted or where arguments in specific parts of the source are being utilised; clear identification of the author of the source.
A Fail will not achieve the above criteria to a satisfactory level and is likely to be evidenced by some combination of the following: using legal sources that appear to have been randomly selected; using sources without explanation as to their relevance; using sources that are not authoritative, eg, having been overruled or amended by statute.
The clarity and quality of the arguments and reasoning adopted.
An HD paper needs to demonstrate the following to a high level of achievement: introduction and overview of arguments to be made; appropriate links drawn between arguments; clear and persuasive reasoning to support those arguments; accurate analysis and conclusions as to the consequences that follow from those arguments; demonstration of understanding of the legal principles; identification of relevant counter-arguments (if any) or qualifications to those conclusions.
A Fail will not achieve the above criteria to a satisfactory level and is likely to be evidenced by some combination of the following: asserting conclusions without clear or any reasons; making illogical statements; making inaccurate conclusions as to the consequences of the arguments; giving irrelevant reasons; ignoring important difficulties with the conclusions drawn or arguments made; misunderstanding legal principles or concepts.
The structure and organisation of the answer including its logical flow and use of headings.
An HD paper needs to demonstrate the following to a high level of achievement: clear introduction and overview of the paper; signposting of the development of the argument; appropriate links drawn between different sections/parts of the paper; discrete (or related) argument(s) in each paragraph; development of ideas and conclusions before moving on to another point; logical progression of ideas, eg, IRAC, moving from the general to the more specific, explaining connections between ideas and arguments; a brief overall conclusion.
A Fail will not achieve the above criteria to a satisfactory level and is likely to be evidenced by some combination of the following: not providing a clear overview of what the paper covers; no signposting of how the paper develops; issues not concluded before new issues introduced; no explanation of the relationship between issues addressed and arguments made; unrelated issues covered in same paragraph.
The quality of the writing, including grammar, spelling and proof reading.
An HD paper needs to demonstrate the following to a high level of achievement: concise and clear grammatical sentences; few if any punctuation, spelling and typographical errors; use of appropriate style (eg, formal, audience appropriate, etc); precise sentences; succinct expression of ideas.
A Fail will not achieve the above criteria to a satisfactory level and is likely to be evidenced by some combination of the following: many ungrammatical sentences or sentences that are of unclear meaning, ambiguous or inaccurate; numerous spelling, punctuation and typographical errors, that evidence a lack of proof reading, effort or care; inappropriate style (eg colloquialisms); waffly and repetitive writing.
The accuracy and consistency of referencing.
An HD paper needs to demonstrate the following to a high level of achievement: use of footnotes; application of AGLC 4 style; consistency in application of style; pinpoint page/para referencing where necessary (quotes, specific parts of judgments/ articles/books);
A Fail will not achieve any of those criteria to a satisfactory level and is likely to be evidenced by some combination of the following: few footnotes and references; inconsistent application of required style; no or few pinpoints; different fonts, spacing etc in footnotes.
These criteria will be assessed on the following scale:
V Poor Poor (F) Satisfactory (P) Good (Cr) V Good (D) Excellent (HD)
General Instructions
ANONYMITY AND OTHER INFORMATION. The only identification required is your student number. Use the cover page available in iLearn under ‘Assessment’ to ensure that you have included all other required information.
FORMAT. The assignment should use one-and-a half-line spacing. References and citations should be included in footnotes. Check your assignment carefully for grammar and spelling errors.
CONTENT. The criteria for marking are set out above. This is a legal research exercise that also requires legal writing. Students are expected to prepare their opinions after research using both primary and secondary sources. All sources must be appropriately cited.
Reference all sources appropriately: As far as possible, adhere to the style in the Australian Guide to Legal Citation (4th ed 2018) available via the library and online.
Before students seek advice from the lecturer, they should have made a genuine attempt to research and prepare the submission. The lecturer will not read drafts.
WORD LIMIT. The word limit is a maximum of 1800 words. The word count is based on the text excluding any footnotes. Footnotes should not contain substantive discussion but can provide context for the reference (eg, whether it is consistent with, contrary to etc, other authorities), contain further references, linking words etc.
COPY OF ASSIGNMENT. Retain a copy of your submitted assignment. Although the Faculty takes all care with assignments, the onus remains with each student to produce a copy if the Faculty is unable to locate the original. It is also advisable to keep copies of all your research notes and drafts.
SUBMISSION OF ASSIGNMENT. An electronic copy of the assignment must be submitted by the same deadline through Turn-It-In via the Assessment Tab of the iLearn site. You should keep the Turn-It-In receipt. If a copy is not submitted to Turn-It-In, you will receive no marks.
LATE SUBMISSION. Applications for extensions should be made to the course coordinator prior to the due date and time of submission.
PENALTIES FOR LATE SUBMISSION. If the assignment is not submitted on time, penalties of up to 5 percent of the actual mark awarded per day late may be applied.
REVIEW OF GRADES. Students should first discuss their grades with the original marker after taking time to read and digest the marker’s comments on the assignment. Applications for review of grades should be made to the course coordinator within two weeks of the original grades being handed to the students. Students are warned that reviews can lead to marks being moved downwards as well as upwards.
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