Mastering law studies and law exam techniques [9th edition.] 9780409343199, 0409343196

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Mastering Law Studies and Law Exam Techniques 9TH EDITION • Richard Krever A practical and engaging guide to successful law study and assessment outcomes Successfully navigating the particular requirements of law school and legal study can be challenging, even for the most capable of students. Mastering Law Studies and Law Exam Techniques de-mystifies the process of studying law and provides the foundations for law school success. The first part of the book provides basic rules and helpful hints on study techniques. The second part shows how to apply these guidelines by presenting a range of sample exam questions and answers contributed by experienced law lecturers from leading Australasian universities. This section includes commentary from examiners about what separates an above average answer from an average answer.

Guides to success in moot court and on how to approach multiple choice and essay assessments are also included. The ninth edition of this successful book has been updated to reflect recent developments in case law and legislation. Features Reader-friendly guidance on how to study law effectively Sample exam questions and answers in a range of core subject areas Explains what lecturers look for in exam answers Designed for law students and others studying law subjects Includes specific advice for commerce or business law students

Related LexisNexis Titles Chisholm & Nettheim, Understanding Law, 8th ed, 2012 •

Cook, Creyke, Geddes, Hamer, & Taylor, Laying Down the Law, 9th ed, 201S

•

Corbett-Jarvis & Grigg, Effective Legal Writing: A Practical Guide, 2014

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ISBN 978-0-409-34318-2

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Krever, Richard. Mastering law studies and law exam techniques. 9th edition. 9780409343182 (pbk). 9780409343199 {ebk). Law examinat ions. Law - Exam inations, questions, etc. Law - Study and teaching - Textbooks. Study ski lls. 340.076

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Contents

Contributors ix Preface xi

Chapter 1 Introduction

1

A Book on Law School Exams? Who is this Book for? 3 Using this Book 3

Chapter 2 An Introduction to Law Studies and Law Exams: Understanding the Dialectic of Law 5 The Legal Process and the Doctrine of Precedent 5 What Do Law Exams Evaluate? 7 Law Exams and the Role of Lawyers 9

Chapter 3 Reading and Summarising Cases 13 Determining the Context of the Decision 13 Distinguishing Between the Ratio Decidendi and Obiter Dicta in a Case 15 Be Aware of What the Case Doesn't Tell You as Well as What it Does 17 Recording the Relevant Technical Aspects of the Precedent 21 Using Texts and Treatises 21 Using the Precis 22

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Mastering Law Studies and Law Exam Techniques

Chapter 4

Some Studying Hints 23

Classes 23 1 Show up 23 2 Read the materials before class 26 3 Ask questions 28 Notes and Review Notes 29 1 Review your notes right after class or the same evening 29 2 Consolidate your notes into review notes 31 3 Prepare a review overview 34 4 Index and tab your notes 35 5 Develop memory aids for closed-book exams 37 Study Groups 37 Practising Old Exam Questions 39 What to Do if You Fail 42

Chapter 5 Some Basic Rules 45 Some Tips 45 1 Prepare an answer outline 45 2 Organise your answer 47 (i) Do not throw out issues in a scattergun fashion 47 (ii) Do not wander in your answer 48 (iii) Do not answer in the form of a long continuous essay or cursory point-form summary 49 (iv) Try to keep your discussion of an argument or issue in one place 50 (v) Present your arguments fully before presenting the conclusions to which they lead 51 (vi) Make the examiner aware of the issues that you have recognised 51 3 Allocate your time to maximise marks 52 4 Follow through with all levels of argumentation 54 5 Answer in propositional style 54 6 Use authorities correctly 55

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Contents

Some Warnings 56 1 Do not repeat the question 56 2 Do not repeat the section 56 3 Do not catalogue a case 57 4 Do not report a case 57 5 Do not cite cases without applying them 58 6 Do not use cases without identifying the principles behind them 59 7 Do not use superfluous introductions 60 8 Do not review entire areas of law 60 9 Do not joke 61 10 Do not forget the dialectic nature of law 61 11 Do not avoid a conclusion 61 12 Do not rely on legalisms; write clearly and concisely 62 13 Do not cite secondary sources 62 14 Do not ignore your spelling and grammar 63 15 Do not look for the definitive answer 63 Issue Recognition, Rule, Application and Conclusion (IRAC) 64 Dealing with Panic 65

Chapter 6 Multiple-choice and Essay Questions 67 Multiple-choice Question Exams 67 Essay Questions 68 1 Identify the question being asked 69 2 Decide upon your thesis 71 3 Prepare an outline 72 4 Start with an introduction and finish with a conclusion 72 5 Provide maps and guideposts throughout the answer 74 6 Incorporate authority into your thesis effectively 75

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Mastering Law Studies and Law Exam Techniques

Chapter 7 Sample Tort Exam Essay Question 77 Sample Tort Law Reflective Essay Question - in an Examination Context 78 Example of an Above Average Essay Answer 79 Introduction - primary objectives 79 Regulatory objectives: punishment and deterrence 80 Ignoring the regulatory objectives to achieve the restorative objective 80 The impact of insurance - possibly diminishing the punishment and deterrent effect of the law of negligence, but serving the restorative aim? 81 Restorative aims - sometimes unfulfilled because of over-riding regulatory objectives 83 Conclusion - resolve the tensions? 84 Examiner's Comments on the Above Average Tort Law Essay Answer 85 Addressing the question/thought and content 85 Presenting all sides of the argument 86 The need for reform (improvement) 87 Structure and signposting 87 Use of authority as part of a considered argument 88

Chapter 8 Moot Court 89 Introduction 89 Mooting v Debating 90 Predicting and Answering Questions 90 Preparation 90 Writing the Submission 91 Advocates' Duties 92 Customs and Conventions 93 Presentation of Submission 95 Answering Questions 97 Conclusion of Proceedings 98 Conclusion 98

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Contents

Chapter 9 Sample Examination Questions and Answers 99 Legal Methods and Reasoning (Foundations of Law): Ross Hyams 99 Contract Law: Elisabeth Peden 117 Tort Law: Ian Malkin and Paula O'Brien 128 Criminal Law: Mary Heath 160 Constitutional Law: Melissa Castan 171 Administrative Law: Daniel Stewart 184 Evidence Law: Miiko Kumar 199 Trusts Law: Susan Barkehall Thomas 209 Company Law: John Duns 225 Income Tax Law: Nolan Sharkey 233 Competition Law: Julie Clark 251

Chapter 10 Study Strategies and Suggestions for Commerce Students 270 Level oflntensity of Study in Law Courses Undertaken by Commerce Students 271 The Search for Certainty 272 Writing Exams for Law Subjects 273 1 Do not start writing your answer until you know what you are going to say 273 2 Make sure you allocate a significant amount of thinking time in the exam room 273 3 Read the question carefully and address the question asked 274 4 Plan your answer 275 5 Apply the authorities and use reasoning"' 276 6 Make your answer easy to follow 276 7 Do not indulge yourself in detailed argument where it is unnecessary 277 8 If you run out of time in an answer 277 9 Match practice - do old exam questions 277 10 Picture yourself in the exam room 278

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Mastering Law Studies and Law Exam Techniques

11 Do not use authorities incorrectly 279 Reading Texts, Cases and Materials - Use Reading Gears 279 Summary 280 Business Law: Pearl Rozenberg 282

Contributors

Susan Barkehall Thomas, BA, LLB (Hons), LLM, PhD (Monash) Senior Lecturer, Faculty of Law, Monash University Julie Cassidy, LLB (Hons) (Adel), PhD (Bond) Professor, Department of Commercial Law, The University of Auckland Melissa Castan, BA, LLB (Hons) (Monash), LLM (Melb), Post Grad Dip Ed (Monash) Senior Lecturer, Faculty of Law, Monash University Julie Clarke, BA, LLB (Hons) (Deakin), PG Dip (KCL), PhD (QUT) Associate Professor, School of Law, Deakin University John Duns, BCom, LLB(hons), (Melbourne), LLM, PhD (Monash) Associate Professor, Faculty of Law, Monash University Mary Heath, BA (Juris), LLB (Adel), PhD (Flinders) Associate Professor, Flinders Law School, Flinders University Ross Hyams, BA, LLB, LLM (Monash) Senior Lecturer, Faculty of Law, Monash University "I

Michael Kobetsky, BEc (Syd), LLB (ANU), PhD (Deakin) Associate Professor, Melbourne Law School, University of Melbourne Miiko Kumar, BA, LLB (Syd) Senior Lecturer, Sydney Law School, University of Sydney Ian Malkin, BA, LLB (Manitoba), LLM (London) Professor, Melbourne Law School, University of Melbourne

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Mastering Law Studies and Law Exam Techniques

Paula O'Brien, BA, LLB (Hons) (Melb), LLM (Cantab) Senior Lecturer, Melbourne Law School, University of Melbourne Elisabeth Peden, BA (Hons) (Syd), LLB (Hons) (Syd), PhD (Can tab) Professor, Sydney Law School, University of Sydney

Preface

Pearl Rozenberg, BSc, LLB (Monash), LLM (Osgoode) Sub Dean (Academic Policy & Administration), University of Sydney Business School Nolan Sharkey, UnivCertPsych (Derby), BA BCom (Murd), GradDipLegSt (NE), GradDipLegPr (ANU), MTax, JD, PhD (NSW) Professor, Law School, University of Western Australia Daniel Stewart, BEc (Hons), LLB (Hons), GradDip (ANU), LLM (Virg) Senior Lecturer, ANU College of Law, Australian National University

A few weeks into my law studies, I, along with two other students, Brian and Philip, was asked by Dale Lastman to join a study group he was trying to establish. I was asked as a consequence of my in-class behaviour. I did not know anyone else in the class and I was not too embarrassed to ask the teachers the questions that everyone else hoped would be asked but were too self-conscious to ask themselves. I am not sure why Dale asked Brian, but it turned out to be a great choice. Brian had a brilliant sense of irreverent humour that made the hours of exam practice sessions pass quickly. And Dale asked Philip because Philip, it was clear to all of us, knew everything there was to know about law. Any question any teacher asked, Philip had an answer. He had canvassed all the cases, studied the statutes, dissected the digests, and tackled all the texts. If there ever was a reason to feel intimidated in law school, Philip was it. After Philip's initial responses in classes, the rest of us were just about ready to pack it in. How could we mere mortals hope to pass courses when we were up against people the calibre of Philip? But we did not quit. Instead, in addition to reviewing exams together, we agreed to share the task of review note-makin~, each person taking a subject. Our hope, of course, was that we would have access to at least one set of brilliant review notes from Philip. It was when we first sat down to practise old exam questions that we realised Philip might not be infallible after all. Everyone else's review notes for a subject averaged 20 to 25 pages. Philip's were at least 100 pages. They were impressive: neatly typed and entirely comprehensive, giving the facts and holdings of every case we had studied. Inconsistencies and difficult to reconcile decisions were

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Mastering Law Studies and Law Exam Techniques

reconciled with references to leading texts and the Digest. In short, Philip was well on the way to writing a book himself. The notes the rest of us made were mere outlines. They contained no details about cases or statutes. Rather, they provided headings of the major points and half a dozen arguments and counter-arguments under each point. Cases relevant to an argument were mentioned in a bracket, after the argument. And the description of a case was just enough to remind us of the decision (the "snail in the bottle" case, the "poisoned pig food" case, and so forth). Philip had spent many times longer than Dale, Brian or I putting together his notes. But the three of us had each spent far more time than Philip on one important task, abstract thinking. While Philip was researching and drafting extensive notes, the three other members of the study group were considering the dozens of cases and tens of dozens of pages of notes we had already assembled in each course, extracting the key points from them, and organising the resulting arguments and counter-arguments under logical and easy to access headings. And so, with two vastly different types of review notes, we sat down to our first practice exam sessions. Most exams were three hours and on average contained three questions. That meant allocating about an hour a question under actual exam conditions. We figured that if we could jot down the outline of an answer in about 10 to 15 minutes in the context of a review session, we could write out the full answer in about an hour in the actual exam. Thus, the trick was to identify quickly all the potential issues in a problem and then in the shortest time possible define each of those issues, explain the rules of law that prima facie applied to them, show how, on the one hand, the rules could apply to the facts in the problem and how, on the other hand, they could be distinguished, and prepare a quick but well-qualified and very tentative conclusion. The resource we needed for this exercise was an outline of issues likely to be covered in the exam and a resume of the arguments and counter-arguments relevant to each issue. Philip's review notes constituted a mighty legal essay, but they were useless for our needs. By the time we had graduated from law school, Brian, Dale and I had collected between us a respectable portion of the prizes and medals available in the school. I accepted a scholarship and went to graduate school, while Brian and Dale, whose interests lay in practice,

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Preface

not academia, accepted articling positions with the most prestigious firm in the country. There were no prestigious firms offering articles to Philip. The profession, after lip service to a range of criteria, at the end of the day hired on the basis of marks. And Philip's marks were not high enough. He had read more cases, consulted more texts, and photocopied more articles than almost anyone else in the class. But the law school was not awarding grades for a comprehensive knowledge of cases and legal principles. Marks were given to students who demonstrated an ability to recognise legal issues and devise legal arguments. In retrospect, the techniques used by Brian, Dale and me seem intuitive. But when we started law school, we had no idea what skills were being examined and how we could demonstrate a mastery of those skills in the context of an exam. So, discovering the tricks early in our law school careers was largely a matter of luck. Unfortunately, many of our friends did not make the discovery until much later in their law school careers. This book is designed to provide a jump start past the luck stage to put readers directly on the path to mastering law studies and law exam techniques. This is the ninth edition of this book. The principal change from edition to edition has been the replacement of sample exams and answers with newer samples that reflect changes in the case law and statutes. This edition drawn on contributions found in earlier editions prepared by Adrian Bradbrook, Richard Fox, Philip Clarke, and Nicholas Gaskell. I am deeply indebted to these contributors for the main points and examples I've borrowed from their work. While I've tried to attribute the sources, no doubt I've missed many borrowings and my gratitude for ideas extends beyond the quoted materials to these unattributed contributions. This book is not the only book available on stuc41ing law and writing law exams. Most law libraries have built up reasonable collections of how-to-study-law materials, including the leading overseas guides. Also, a growing number of competitor and companion volumes have appeared on the Australian market. These are available from most law school bookshops. As this book emphasises time and again, studying law and writing law school exams is probably different from any academic work you have attempted previously. The better you understand what is expected of you and tailor your study system to

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Mastering Law Studies and Law Exam Techniques

produce the results that yield higher grades in law school, the better you'll do in law school and, quite possibly, the more options you'll have in choosing a satisfying post-school career in the law. Read as many guides as you can. A small investment now can yield dividends for a lifetime. Richard Krever Melbourne, 2016

Chapter 1

Introduction A Book on Law School Exams? Competition for places in law schools is intense and admission cut-off points for Australian law schools and business schools are invariably high - successful applicants usually come from the top percentile of graduating high school students or, in the case of transfers from other faculties, from the top performers in university. There are few students in law school without proven records of past academic achievements. Successful applicants have demonstrated their exam writing ability well - it was on the basis of that ability that they were admitted to law school. The odds are very high that you, the reader of this book, have done well until now without the need for a guidebook on exam techniques. So why should you look at a book on writing law school exams? There are two answers to that question. The first is simply that your past achievements have now put you in a position where you can no longer rely solely on the acquired skills, inherent talent and luck that formerly brought you success. Until now you have competed with a whole range of students with varying potentials and skills. You were admitted to law school because you demonstrated your ability to do better than most of your classmates. But law school classes are composed of students who were at the top of their former academic institutions and everyone in your law school course will have done as well as or better than you. In this new environmeflt, your past success will no longer suffice. The competition for top places in the class is many multiples more intense than it was in secondary school. At the same time, you must do well at law school if you hope to succeed in a law career. Whether you hope to join a firm of solicitors, practise at the Bar, enter the public service, join the corporate sector or pursue a career in academia, admission to the best positions is based almost exclusively on law school performance. By the time you graduate from law school you will have mastered law school examination techniques. This book is designed to help you commence

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Mastering Law Studies and Law Exam Techniques

your legal studies with those skills, not finish with them. That advantage can pay dividends for a lifetime. The second reason for this book is that the academic discipline of law is unlike anything else you have studied in the past and law exams are quite different from any others you have written. Whatever your background, in law school you are starting from scratch. Techniques and study skills that worked in the past will no longer see you through. If you fail to adopt new study and exam writing techniques geared to law school studies, you will do poorly, perhaps even running the risk of failure. Especially disconcerting for many is the discovery that law studies are not only vastly different from most of their high school subjects, but are also different from most other university studies. And finally, for the not insignificant number of students who took legal studies at high school in the hope that it would ease their transition into law school, provide them with a framework for studying law and give them an edge over classmates with no similar background, there is the disappointment of discovering any advantage with which they may have begun evaporated after the first 20 minutes of the opening contracts lecture. In the end, doing well at law school is synonymous with doing well in law exams. To be sure, other skills enter the marking process - research papers, moot courts, class participation, and so forth, all count towards your final result. But in the long run, the success or failure of your law school career turns on the degree to which you have mastered the ability to perform well in writing law school examinations. The choice of evaluation method is not just coincidence or chance. The decision to evaluate in a few short hours of intense pressure a student's comprehension of materials learned over many hours in the classroom and many more in the library or at home is quite deliberate. Law studies are designed to teach you the skill of extracting legal principles from a broad range of cases and statutes and developing legal arguments based upon those principles. Law exams provide an accurate indication of a student's ability to synthesise principles quickly and accurately apply them to a set of facts involving a number of legal issues. This book explains the basis of those skills and shows how your law studies can be tailored to prepare you best for the exam process. It also explains how to present your law exam answers to demonstrate your mastery of those abilities.

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Chapter 1 - Introduction

Who is this Book for? This book is designed for use by law students and students of related disciplines, such as business and commerce, that include law courses in their curricula. It provides a guide to the theory of legal argumentation and explains how those skills can be learned and applied for maximum benefit in law examinations. If you are studying a law subject for the first time, reading this book will help you understand the nature ?f legal education and help you develop the tools and habits you will need to succeed at legal studies. If you have already completed a number of law subjects, the book can be used as both a review and a guide by which you can evaluate and improve your present practice and performance. Alternatively, if you are confident you have already mastered the theoretical materials in the opening chapters, you may wish to jump directly to the sections on review and exam wr.iting techniques. Those materials, along with the sample exam questions, answers and comments found in the last chapter, will help you polish your exam style and minimise the risk of costly errors.

Using this Book Writing successful law school exams cannot be separated from the rest of law school study. Law exams do not evaluate the knowledge you have learned so much as your ability to build legal arguments by using and applying that knowledge. There is no place for cramming for a law exam - cramming may teach you a multitude of facts but cannot prepare you for an exercise in legal reasoning and argumentation, the skills on which you will be graded. This guide to successful law exam writing techniques therefore does not commence at the end of the year in the examination room. Rather, it starts in the next chapter with an overview of the legal process and the fui;idamentals of legal argumentation. Also looked at is the inter-relationship of the skills taught and evaluated at law school and the professional practice of law. Chapter 3 then explores in depth the basic elements of le~al argumentation and explains how you should read and summanse cases to distil from them the legal principles you will use in a law exam. Chapter 4 shows how to prepare and use review notes and study for a law exam and Chapter 5 contains a checklist of points to follow and faults to avoid in the exam itself.

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Mastering Law Studies and Law Exam Techniques

While most law school exams are based on problems, on occasion examiners will set multiple-choice or essay questions. Chapter 6 contains sections on answering both these types of questions. Chapter 7, by Ian Malkin and Paula O'Brien, presents a sample essay question, answer, and examiner's comments, as well as a further short guide to writing an essay answer. Chapter 8 deviates slightly from the principal focus of this book, studying law and writing law examinations, and addresses instead the techniques required for effective moot court presentations. As you will see, the principles of how to learn and use the law are similar for moots and law exams, the major difference being the forum in which you demonstrate your mastery of those skills. Chapter 9 contains a number of sample examination questions, answers and examiners' comments. The samples cover most of the compulsory and quasi-compulsory subjects in law school. Finally, Chapter 10 is directed primarily at non-law students of commerce or accounting who study law subjects. It explains how the principles in the book should be applied to law exams written by non-law students and points out the areas where slightly different approaches may be appropriate. This chapter contains a sample commerce law question and answers geared towards the needs of commerce students. It will soon become apparent that many of the rules for writing law exams effectively cover much more than the three-hour process of putting pen to paper and answering a limited number of law exam questions. Successful law exams are the result of consistent work throughout the course, not simply a fruitful few hours in the exam room. Much if not most of the trick to writing top exams comes in the preparation. Fortunately, preparation for a law examination is not necessarily difficult - in fact, once you know what you are looking for and how to prepare, the challenge can become both easy and fun.

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Chapter 2

An Introduction to Law Studies and Law Exams Understanding the Dialectic of Law The Legal Process and the Doctrine of Precedent In the common law system of justice used in Australia, the "law" derives from two sources- the statutes enacted by the Commonwealth or state parliaments (or lower tier councils given delegated power to enact laws) and the common law rules developed by the courts. For example, the Commonwealth and state governments have passed laws dealing with all types of commercial and consumer contracts but it is the common law developed by judges that will determine what elements are needed for a valid contract to exist. The common law is derived entirely from judicial precedent. Prior decisions of a higher level court create binding precedents which a later lower level court is bound to follow and holdings of a court with equal authority establish persuasive, if not mandatory, guidelines for the resolution of a case. Statute law, in theory, derives from legislation. However, legislation is drafted using words and phrases, building blocks that are subject to interpretation by the courts, again based on understandings derived from precedents. The common law system and the doctrine of precedent on which it is based reveal a dialectic tension rarely duplicated in other fields. There are two sides to every legal dispute and by the time any case reaches court, both versions of an event or both arguments raised by lawyers for the parties sound not only plausible, but perhaps convincing. In the common law system, a precedent does not establish a static law; it is, rather, a device to be considered, reinterpreted and then applied or distinguished to devise a new rule applicable to a subsequent analogous but slightly differing fact situation. The need to recognise the dialectic nature of law and learn how to use it to formulate legal arguments is a theme that reappears constantly throughout this book.

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Mastering Law Studies and Law Exam Techniques

It is one of the keys to the successful practice of law and the mastery of law studies and legal examinations. The dialectic nature of the legal process is best shown with an example. My illustration is deliberately simplified and is not intended to reflect the law accurately so much as the thought process in the minds of lawyers and judges who seek to resolve a legal dispute by way of analogy and distinction from prior decisions. Let's imagine a fact situation where a householder fails to clear leaves off his path and a delivery person slips on the leaves and is injured. In those circumstances an appeal court might conclude that the householder had failed to satisfy a duty to visitors and is liable for the damages suffered by the delivery person. The court might say, "Householders are responsible for providing safe access to their houses by making sure paths are cleared ofleaves and they must assume responsibility for any injury suffered as a result of their failure to perform this duty". How should the precedent be treated by a judge hearing a case involving a similar injury but this time suffered by a trespasser? The lawyers' arguments will tum on how the precedent should be interpreted. Under the common law system, the rule of law in the earlier decision is binding on lower courts and almost always followed in similar level courts. But what is the rule of law set out in the earlier decision? As is explained in detail in Chapter 3, the binding part of a decision is its core element or the ratio decidendi. The parts that set out the background to the decision or help explain how it applies, the obiter dicta in the judgment, need not be followed directly in later cases. Chapter 3 provides some pointers on identifying the ratio and obiter parts of a decision. At first glance the peculiar facts of the second case do not appear to take it out of the ambit of the apparent rule oflaw of the first decision. The householder had a responsibility and someone was hurt because the householder did not meet the standard of care required. But would the appeal court have intended its holding to apply to trespassers? There is no way of knowing what the court would have decided had the judges turned their minds to the question. Certainly counsel for the householder would argue that the appeal court, had the problem been considered directly, would not have wanted to extend to trespassers the rights resulting from the ruling. Thus, the householder's lawyer would suggest, to give effect to the real but unstated intent of the appeal court, the rule has to be read down to cover only those cases

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Chapter 2 - Understanding the Dialectic of Law

where the injured person had an actual or an implied invitation to enter the property. Since the appeal court never did address the issue directly, counsel for the trespasser can quite correctly point out that the opponent's interpretation of the ratio of the original decision is putting words into the original judgment, resulting in a new rule quite different from that intended. If counsel for the trespasser hopes to persuade the judge in the second case that the first holding must be followed quite literally, without considering the status of the injured person, this lawyer will have to show why the purpose of the original rule would be defeated if the gloss sought by the householder were added to this rule. For example, the lawyer might try to argue that the appeal court was seeking to impose a standard of care on the householder as the person in the best position to know of and remedy the dangerous situation and the status of the injured party is less important than the status of householder as the person responsible for the property.

It is only on the rarest occasions that new cases duplicate the facts of a previous binding judgment and virtually never does this occur in a law exam. Lawyers seek to apply or distinguish precedents by relying on a combination of arguments based on questions of law and questions of fact, with no clear-cut divisions between the two. The process of applying precedents to legal arguments in an exam answer is explained in more detail in the following chapters. For the moment it is sufficient to remember that, as it pertains to law exams at least, lawyering is a matter of considering, applying and distinguishing precedents. It is important that you understand this process before you begin to read and summarise cases in preparation for your law exams. As explained in the following chapter, your goal is not to find the golden rule of law established by a case but instead to understand the apparent ratio of a decision and the context in which it was established so you can best use it either by showing how it shoutd apply to the facts of a later case or how the facts in the later case can be distinguished so the ratio of the earlier decision has no binding application in the second case.

What Do Law Exams Evaluate? In some disciplines you are tested only to see that you have memorised the required information. In most law examinations, however, you must demonstrate that you have not only learned the information,

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Mastering Law Studies and Law Exam Techniques

but have learned to apply it in the context of an exam problem. Law exams evaluate your ability to apply the information you have studied to a unique purpose - the formulation of legal arguments. Through a process of application and distinction, you will be expected to reach a final conclusion by balancing precedent against precedent. Reaching the conclusion is not the ultimate goal; the aim is to demonstrate a comprehension of the issues arising from a given set of facts and an ability to create counter-arguments relevant to those issues. The key to writing successful law exams is an understanding of the legal process as well as the law that it involves. Preparation for a law exam requires learning the dynamics of the law, not simply its rules. The rules are readily accessible - they are found in the statute books and case reports in the library which your research training will help you retrieve. The reason law exams place particular emphasis on the skills of legal reasoning and argumentation and not the rules is simple - while many rules you learn will be short lived, the legal skills you acquire will be relevant for your entire career. Substantive content is not unimportant, of course. But, exam problems are designed to test your understanding of underlying principles and specific (and quite possibly transitory) rules are of value only in illustrating applications and variations of the resulting arguments. If a trade practices law sets out four criteria to be used to identify an abusive monopoly and an exam problem outlines facts that may amount to an abusive monopoly, the examiner may allocate at most one or two marks for mentioning the criteria used to identify a monopoly. The examiner may allocate another 8-10 marks for analysing the facts in the problem and explaining, by reference to precedents that can be applied or distinguished, why the facts in the problem may or may not satisfy the criteria set out in the legislation. One reason for this emphasis on using precedents to build arguments on why the rules may apply or may not apply to the facts in a case rather than testing knowledge of specific rules is the astonishing pace at which rules date. Recent cases you read in the first weeks of class may be overruled by later decisions or legislation or distinguished into extinction long before the academic year is over. Some statutes alter with equal rapidity. In areas such as company law and income tax law, the law changes so quickly that the legislative materials you purchase at the beginning of the course may be out of date and replaced by a new volume less than half-way through the year.

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Chapter 2 - Understanding the Dialectic of Law

My advice that you look for principles and issues rather than concentrate on the exact state of the law will no doubt seem out of place when you discover that for the most part your law lecturers teach nothing but cases and statutes. Those cases and statutes are not intended to be ends in themselves. Rather, they are tools. They are used to illustrate the legal process of recognising issues, extracting them from fact situations, devising principles to solve legal conflicts and then applying this process to a new, but analogous scenario. A good exam answer will demonstrate these skills, not a detailed intimacy with facts or figures. Two features of law exam format should help demonstrate the validity of this proposition. To begin with, it should be obvious that you are not expected to put more than a fraction of what you have learned over the year onto paper during the exam. The ratio of class, reading and study time to exam time is probably somewhere between 20: 1 to 40: 1. That necessarily means you are expected to extract important principles from the mass of information you looked at, not to reproduce the fine details of every case or statute. If you have failed to learn issues and principles instead of details, you will find yourself with a great pool of knowledge and no time in which to use it. The second feature of law exams which should provide an insight into the preferable law exam answer is the fact that many, if not most, law exams you will write are conducted as "open book" exercises in which you are permitted to take with you into the exam a wide selection of reference materials. Clearly, if the examiner is willing to permit you to bring almost any data you wish into the exam room, you are not being examined on memorisation skills. And given the time constraints of law exams, it should be obvious the that examiner does not expect you to know how to find the "answers" in your materials. At best, you will be able to rely on an outline to hel,p jog your memory - if you have not learned and understood how to use the cases and materials studied in the course by the time of the exam, the best notes, texts and references will be useless.

Law Exams and the Role of Lawyers A lawyer who is not able to understand and use the dialectic nature of the law would not survive long in practice. In the real world lawyers must represent persons on every side of every legal issue. On one day a plaintiff will walk into the office while a defendant in another

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Mastering Law Studies and Law Exam Techniques

case involving almost identical facts will enter the next. The good lawyer should be prepared and able to represent both and put forward a plausible case for either client. And even if you choose only to represent one type of client- defendants rather than plaintiffs, unions rather than management, taxpayers rather than the Tax Office - you will still need to fully understand the position of your opponent to effectively represent your client. Understanding the practice oflaw, the goal towards which your legal education is geared, is thus a good starting point for understanding the dialectic nature of law exams. The lawyer is an advocate. The advocate's role is to represent or advise a party. For the most part, the job involves comparing and evaluating arguments. Unlike the doctor who is expected to give a factual answer - "if you take this pill, it should clear up that disease", or the engineer who is expected to give technical advice - "if you build the wall this thick it will support that weight", the lawyer is employed to provide relative advice. At best the lawyer can advise a client of the arguments that can be raised in the client's favour and the opposing arguments that will be raised by the party with whom the client is having a legal dispute. The lawyer is, of course, paid to offer a probable conclusion on the basis of research about those arguments. But when the lawyer does provide an opinion, it will be qualified and carefully drafted to include the many uncertainties inherent in any legal conclusion:

As the law now stands I think your arguments will be accepted over your opponents. This conclusion is only tentative and may not be valid if a higher court hands down a decision reversing the law between now and the time your dispute comes to court or if the legislature passes a new statute in that time or if your opponents lawyer is able to distinguish all the cases establishing the present law from your situation or if I misunderstood the scope and meaning of any of the judgments on which I relied to reach this tentative conclusion. The dialectic nature of the legal profession is also evident in the outcome of cases. Over your law school career you will read hundreds of High Court decisions that cost some lawyers' clients thousands or hundreds of thousands of dollars to argue. The lawyers arguing those cases were neither fools nor charlatans - in every case they sincerely believed a good, indeed winning, argument could be raised on behalf of their client. (Perhaps I shou ld say "almost every case" - there are inevitably cases where litigious clients insist on proceeding with an appeal even after their lawyers have advised them that they will

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Chapter 2 - Understanding the Dialectic of Law

probably fail.) Even where the law was apparently certain, two sides with opposing views thought they each could win and were willing to gamble enormous sums of money on that prediction . The unce1iainty of the law and the dialectic nature oflegal argument is often further revealed by the progress of a case through the courts as it is reversed two or three times on its appeal route. Indeed, it frequently happens that a losing party has convinced more judges of the correctness of the losing party's case than that of the winning party. This could happen, for example, if a litigant won at the trial level (a single judge) and again before a Supreme Court (three judges) but lost at the full High Court in a 4-3 split decision. Although it turned out that the law did not favour the losing party's arguments, seven of the eleven judges hearing the dispute thought it did, while only four thought it did not. The fact that judicial decisions are regularly appealed and the outcomes are often reversed on appeal illustrates well the dialectics of law. However "well-settled" an area of law may seem, it is always possible for a skilled lawyer to guide sympathetic judges to reach a different result by distinguishing the result in contrary cases that in theory are persuasive or even binding on the court and drawing upon arguments or principles from other cases to support by analogy the desired outcome. Additional arguments based on analogy can be marshalled as you climb up the appeal ladder. Lower court decisions may be persuasive, but they can be directly overruled, not merely distinguished, by a higher level court convinced there is support for an opposite conclusion. At the top, the High Court may distinguish or overrule decisions of lower level courts that are inconsistent with its proposed ruling. Where it is faced with an earlier High Court decision that is inconsistent with its proposed holding, the High Court judges usually try to distinguish the previous inconsistent judgments. On much rarer occasions, when a majority of the Court can be convinced on the basis of principles and precedents that a previous decision should not stand, the Court will simply reverse itself, acknowledging the previous decision is not good law and a different result should follow (in effect, overruling itself). The point of this discussion of judicial processes is simply to illustrate that in every legal dispute, plausible arguments can be developed for both sides of the dispute. The role of the lawyer in the dialectic of law is not on ly evident in the courtroom. Indeed, in most disputes the matter is resolved long before the trial. The lawyers for

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both parties know their mandate is to construct the best case possible for their clients. If they are reasonably competent, they should be able to accomplish this. But both lawyers are cognisant of the substantial risk to their own cases posed by the opposing counsel's arguments, as well as the weaknesses in their opponents' briefs. They know that some of the precedents upon which they are relying have tenuous connections with the actual problem of their clients and might, therefore, be easily distinguished by the other side. Similarly, they know the strength of the cases upon which the other parties will rely. It is thus not unexpected that most legal disputes are settled out of court. The plaintiff's lawyer will explain that the plaintiff might be successful and win it all but could lose and win nothing. The defendant's lawyer will point out that although the defendant might prevail and lose nothing, there is a risk of an adverse judgment in which case the defendant could be liable for the entire amount claimed. Depending on their views of the relative strengths and weaknesses of the opposing arguments, the lawyers will recommend settlement at some figure between the total sought and zero. A final word on the role of lawyers and the dialectic nature of law is needed, lest I leave the impression that lawyers are solely concerned with devising arguments and counter-arguments to resolve disputes . It is true that championing the interests of clients caught in legal disputes is one of the important aims to which the teaching of legal skills is directed. But while many clients seek lawyers to help them after the fact, in the real world much of a lawyer's job is to guide clients so they do not fall into legal disputes in the first place. Clients expect their lawyers to draw up contracts that will not give rise to later problems, to draft wills that will not be challenged when they come into effect, to organise businesses in the preferable form so later changes will not be needed, and to organise transactions that attract the preferable tax consequences without the risk ofreassessment. The primary goal is to keep the client out of court. Winning the case, if it goes to court, is a second tier responsibility. These primary tasks cannot be competently carried out unless the lawyer as advisor has carefully worked through the arguments and counter-arguments that might be raised about the interpretation of the contract or will or the application of the business form law or taxation law to the client's proposed structure. The skills needed by a lawyer to keep a client out of disputes are identical to those required to win once the client is in court.

Chapter 3

Reading and Summarising Cases Law students can usually skip over the first step in finding the common law, that is, unearthing the relevant cases. In most courses the instructor or casebook editor will have already assembled those cases for you. Your first task, then, is to prepare a precis of a case, that is, a short summary of the facts and holding, setting out the rule of law established by the precedent. The precis will be the building block from which you will construct or neutralise arguments that can be based on that precedent. As such, it should contain whatever information is needed to apply or distinguish the holding in future analogous situations.

Determining the Context of the Decision The initial step to understanding the relevance of a law report is to ascertain who is suing whom for what. Although this introductory step sounds like an easy mechanical exercise, often as not it requires a little detective work. The cases you read are appellate decisions on questions of law. (In some jurisdictions first instance decisions are reported - these, however, are the exception, not the rule.) The judges giving the decision have heard counsel for the parties explain in great detail the facts giving rise to the dispute, the procession of'hearings and legal events prior to trial and, often, details of the original trial itself. The appellate judges then deliver an opinion on their interpretation of a point oflaw without necessarily setting out all this background context clearly. It is important that you carefully read a decision to draw out this information. You cannot understand the relevance of a judgment - where it should be applied and where it can be distinguished unless you understand the factual basis for the case. The more times a decision is appealed, the further complicated the task becomes. In some jurisdictions the names of the parties reverse as

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one party and then the other appeals - Smith v Jones becomes Jones v Smith when Mr Jones appeals and then reverts to Smith v Jones when Ms Smith appeals that decision. In other jurisdictions, the order of names remains the same all the way up. Some parties have been joined to the action by an original party and appear as "third parties". And sometimes parties are added or dropped at various appeals. Acme Pty Ltd may lose a case against the Commonwealth of Australia on constitutional grounds but be joined by the States of Victoria and Queensland as intervenors when the case is appealed if those States see their powers threatened by the original decision. The labels attached to the various parties change, too, as decisions proceed through the courts. Plaintiffs and defendants may become appellants, applicants or respondents. To complicate matters further, judges will usually refer to parties by their judicial labels (appellant, plaintiff, etc), not their real names. And to top it off, they will do so inconsistently - one judge might speak of the appellant while another refers to the same party as the plaintiff, which was the party's status in the court below. The next step after determining which party is suing which and why the action was brought is to decide who won. Once again, what sounds like an easy task is sometimes anything but that. After a long discussion of the precedents and doctrines applicable to the dispute at hand, an appellate decision may finish with a cursory "order upheld" or "order nisi granted". Who won and why? To answer that question you will have to go back to the judgment and extract from it the facts of the underlying dispute and the exact relief sought in the judgment being appealed.

In many important cases there will be no winner or loser - the appellate court will have been asked to determine a point of law and not decide the outcome of the case. This was the situation, for example, in Donoghue v Stevenson, the famous precedent that established the basis for the modem law of liability for negligent manufacturing. To this day, no one knows whether there was a snail in the bottle of ginger beer that led to the case. We only know that ifthere was and it could be shown the snail got there as a result of the manufacturer's negligence, the manufacturer could be liable to the consumer. In Donoghue v Stevenson the facts of the case had not been established by the time the appeal reached the House of Lords. In most cases there will be a judgment delivered on the basis of found facts before a question of law reaches the appellate court. Even then, appellate courts will not deliver a final decision in cases where the

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Chapter 3 - Reading and Summarising Cases

final determination may tum on the facts of the dispute. In these circumstances they may suggest the matter be retried in light of the statement of law they have handed down or they may send the case back to the trial court to give a ruling based on the decision they have just delivered. In the end, you will know an apparent rule of law but have little firm guidance as to where it will or will not apply. Its ambit must be determined by future courts.

Distinguishing Between the Ratio Decidendi and Obiter Dicta in a Case The theoretical key to the common law system of precedent is the all important distinction between the ratio decidendi and obiter dicta in a case. The ratio decidendi is the actual rule oflaw stated in the holding of a decision, a rule that will be binding on future courts. An obiter dictum, on the other hand, is a judicial pronouncement on the law that is not integral to the holding itself. While it may be considered by a later court, an obiter dictum will not establish a rule of law that must be followed by any court. Although this distinction is for the most part merely a legal myth, it is carefully retained by the lawyers who utilise it to formulate legal arguments. Recognising this fact, you should read and summarise cases in a manner that will enable you to argue a rule is the ratio decidendi or obiter dictum, as the need arises, when an analogous hypothetical situation appears in an exam question. On some rare occasions, judges will assist you to identify the ratio decidendi or an obiter dictum by couching part of their decision in hypothetical terms. For example, you may come upon a discussion that reads something like this: An alternative ground relied on by the appellant was ... and ifI were to decide on that basis I would probably conclude that ... However, since I am basing my decision on the first argi1ment presented by the appellant, I do not have to decide on the basis of this alternative argument. Presumably, the entire discussion of the alternative argument and the conclusion to which it would lead are obiter. While they could, and most likely would, be cited by a counsel hoping to rely on a similar argument in a future case, opposing counsel should be able to present it as non-binding dicta . This does not mean the argument would fail, of course. An obiter dictum in one case may become ratio decidendi in the next. The fact that the conclusion was obiter dictum would be

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a principal plank in the opposing lawyer's campaign to avoid the application of the alternative rule in a later case, however. Another form of hypothetical situation that sometimes appears in reported decisions is the factual hypothetical. In this situation, a judge explains how the case would have been decided in the presence or absence of certain facts unlike those in the actual case. For example, a judge may explain some6ing along these lines:

The issue is whether the defendant is liable for the injury suffered by the plaintiff as a result of slipping on the leaves on the defendants pathway. Had the defendant posted a sign stating "Caution, path slippery because of leaves", a strong case could be made for relieving the defendant of liability on the basis of notice to the plaintiff. In this case, however, there was no sign posted so I cannot use that logic to reach my decision. The obvious question is what happens in the next case when there is a sign posted. The discussion in this case is prima facie obiter dicta and would be so presented by counsel for the injured plaintiff in the next case ifthere is a warning sign next time. But if the defendant landlord were found liable in the first case where there was no warning sign, the landlord's lawyer in the next might be able to use these apparently obiter dicta to help redefine the ratio to suit the client's case. For example, if the ratio decidendi seemed to be that a defendant is liable for injuries resulting from failure to clear pathways on the property, the defendant landlord's lawyer could recast it in these terms: the defendant is liable for injuries resulting from failure to clear pathways on the property unless visitors are notified of the danger. There are not many cases (relatively speaking) where the judge explicitly states that part of the reasons for judgment is obiter. In most cases the dividing line between rationes decidendi and obiter dicta will be determined subsequent to the decision by other judges choosing between conflicting interpretations offered by lawyers who seek to apply or distinguish the precedents. Your task is to prepare a precis that contains enough information for you to use the case as a precedent in a law examination. To ensure you've covered the essential elements of the facts and holding, you should project ahead and think how the case might be applied and distinguished in the future. Take, for example, our "leaves on the path" case. Ifthe following case involves a warning sign, the lawyer for the injured plaintiff will argue the ratio decidendi of the first case turns on the absence or presence of a dangerous pathway and posting a sign has no effect on the ratio.

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Chapter 3 - Reading and Summarising Cases

Counsel for the defendant landlord, on the other hand, will try to limit the holding to cases in which the plaintiff was not adequately warned. Let's assume for the moment that in the first case the judge found for the victim but suggested in obiter that a different result could follow ifthere had been a warning sign. We ' ll also assume that in the second case where there was a warning sign, the court adopted the obiter suggestion of the judge in the first case and found for the landord in the second case. Which rule should apply in a third case where there is no warning but the injured person is an uninvited trespasser? Should the basis of the first decision (a homeowner is liable for his pathway) or the logic of the second case (a warning absolves the homeowner of liability) apply to the third case, or should a new, third rule apply (the liability turns on the status of the injured person)? In the exam you will be expected to develop the arguments each side will raise to expand or contract the rationes decidendi of the prior decisions in their efforts to apply or distinguish the precedents. A good precis will point the way to those arguments by outlining the facts and holdings of each decision in the chain and showing how each distinguished or applied the apparent rationes of earlier cases.

Be Aware of What the Case Doesn't Tell You as Well as What it Does As you prepare your precis of a case you should note not only the details of the case, but also their immediate relevance to the holding in the case. This preparation will provide you with the tools for constructing and dismantling arguments in an exam context. The facts that were absent in the original case are as important as those which were present. Let's illustrate the later point with another example. This one is based on an actual fact situation taken from the famous English contract case of Parker v The South Eastern Railway Co. In Parker, a customer had deposited a bag in a cloak-room at the defendant's railway station, paid the clerk 2d, and received a paper ticket, on one side of which was printed a number and a date and the words "See back". The reverse side contained a number of clauses relating to articles left by passengers, the last of which was, "The company will not be responsible for any package exceeding the value of £10". A notice to the same effect was printed and hung up in the cloak-room. The customer, plaintiff in the subsequent case, had left a bag worth

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Mastering Law Studies and Law Exam Techniques

£24 in the cloakroom and sued for compensation when the railway lost the bag. At the trial he claimed he had not seen the notice in the cloak-room and had not read the front or back of the ticket. He further claimed he had thought the ticket was simply a receipt for money paid by him. It seems intuitive, even to those who have never studied contract law, that the customer should bear the risk of loss if the railway's disclaimer of liability had been made explicitly clear to the customer prior to payment and the customer had explicitly agreed to the conditions before handing over 2d and the bag. Most observers would probably agree that the customer should also be expected to bear the loss even if there were no explicit agreement regarding the conditions so long as they were clearly explained before the fee was paid and the bag passed over - in those circumstances it could be presumed that the payment and bag deposit amounted to implicit agreement with the terms of the contract. Some might say, of course, that it would be unfair to pass the entire burden of risk to the customer ifhe or she had no option but to agree to the railway's terms, as would be the case, for example, if the railway held a monopoly on the transport of goods between two points. This may be so, but such policy decisions are usually considered to be within the realm of the legislature, not the courts. As a matter of pure contract law, we assume parties enjoy equal bargaining power, however fictitious that assumption may be in the real world, although the presumption has certainly been tempered by the doctrine of unconscionability in more recent times. To return to the case at hand, the issue to be decided in future cases where the facts resemble those of Parker is at what point the customer will be taken to have agreed to the conditions set down by the railway as its terms for the unwritten contract to store the customer's goods . If the railway explicitly read out its conditions of storage prior to acceptance of the customer's money, those conditions would clearly be considered to have been incorporated into the contract. The court in Parker suggests a similar result would follow ifthe customer knew the railway's conditions were on the ticket but chose not to read them. In fact, the court in Parker concluded the customer would be bound even if he did not know the railway's conditions were on the back of the ticket, so long as the ticket was delivered to him with "reasonable" notice that the conditions were spelled out on the ticket. Will the railway have given reasonable notice ifit simply erects a notice in the

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Chapter 3 - Reading and Summarising Cases

cloak-room setting out its conditions and prints them on the back of the ticket with a note on the front of the ticket saying "See back"? The answer to that question is not to be found in Parker. Although Parker is considered one of the leading precedents in the area, at the end of the day we don 't know if the customer in that case won or lost. The appellate court that established the rule of law sent the case back for retrial to see whether there had been reasonable notice in that particular case. The results of the retrial were never reported. At the retrial, the judge (or jury as was the case in Parker) might conclude one large sign placed so as to be noticed by anyone in the cloak-room would be sufficient to make the customer aware of the conditions. But if the room had two dozen posters in it, of which the notice of conditions was only one, the judge might conclude the company had not done enough to make the customer aware of the existence of its conditions. Similarly, if the attendant explicitly commented on the conditions, a judge might be entitled to conclude the railway had satisfied its obligation in that case. On the other hand, ifthe attendant said, "Here's your claim ticket" when handing the ticket to the customer, he or she might be entitled to presume the conditions on the back did not form part of the contract, notwithstanding the notice and "See back" note which otherwise might be sufficient to make the customer aware of the existence of the conditions. Or, ifthe attendant's comments implied conditions different from those on the back of the ticket, the judge might conclude there was no notice of the existence of the actual conditions. Alternatively, the judge might conclude the customer was made aware of the actual conditions, but was entitled to conclude they bad been superseded by the oral conditions. What would happen if the customer were illiterate? Does the railway have to take each customer as it finds him or her or can it presume a large notice is sufficient to make the customer aware of the existence of conditions so that the onus is on the customer to ask what the conditions are if he or she cannot read the notice or writing on the ticket? What would happen ifthe customer knew there were conditions on the back of the ticket but discovered the writing too small to read? What ifthe writing was small but could be read by most customers not suffering from the bad sight which afllicted the particular customer who lost the bag? Parker doesn't tell us the answers to any of these questions. But the very absence of definitive answers should show you what can be extracted as the holding of the case and what issues

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Mastering Law Studies and Law Exam Techniques

Chapter 3 - Reading and Summarising Cases

it raises, issues that should be considered in the context of an exam problem.

Recording the Relevant Technical Aspects of the Precedent

In any case following Parker, the customer's lawyer will seize upon all the facts peculiar to the subsequent case to show why the basic condition stipulated in Parker, making the customer aware of the existence of the conditions, was not satisfied in the case of this particular client. The process is two fold. First, the lawyer will try to show that the railway's actions were insufficient in the subsequent case to make customers aware of the existence of its conditions. Second, and in the alternative, the lawyer will argue that even if the railway's actions in the subsequent case were sufficient to make customers aware of the conditions in ordinary circumstances, the actions were not sufficient with regard to that particular client. In this case, the lawyer will have to convince the court that the rule in Parker was meant to apply to each individual customer, not the railway's average customer.

It is important that you include whatever information may be relevant to any "technical" arguments you may wish to raise in favour of or against the application of a precedent. Thus, your precis should note the jurisdiction of the court, the level of the court and, where appropriate, the judges responsible for the opinion that counsel would likely cite. Some of the so-called technical arguments are purely factual, for example: "This is an English Court of Appeal decision and ofpersuasive value only", while others are less tangible and rest more on conventions and unwritten legal codes. For example, an important factor in many situations is the respect accorded to the judge delivering a decision. Developing a sense for these codes takes time but after a few years at law school you will begin to realise which judges command greater respect in later courts and which do not.

In an exam, if you are asked to advise the customer, you will be expected to follow the same process. You will also be expected to evaluate the impact of the facts in the problem which undermine your arguments about the knowledge of customers in general and the customer in the problem in particular. As to the second point, if you conclude the railway provided sufficiently reasonable notice to ensure ordinary customers would be aware of the existence of the conditions but their efforts were not sufficient in the case of your particular client, you will be expected to explain why a court should adopt a rule of Jaw placing the onus on the railway to draw attention to its conditions to each particular customer, not adopt a procedure sufficient for average customers. Finally, it is important to realise that the exam problem is unlikely to be based on a customer depositing a bag with a railway. Instead, it will deal with another contract problem - a customer leaving a jacket at a dry cleaners, a commuter parking a car in a city lot, a child leaving a bicycle in a shop for a new tyre (what would the result in Parker have been ifthe customer were a child!), a customer checking a jacket at the opera or in a restaurant, and so forth . The analogies and arguments that arise out of the Parker doctrines must be transposed into completely different factual situations, a process which will allow you innumerable opportunities to apply the facts in the problem to develop new arguments.

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Often these intangible factors have quite an impact on the legal process, though they are not found anywhere in the theoretical framework for the common law system of precedent. Thus, for example, without knowing how well respected and often cited Dixon CJ is, you would not think to argue that a court might be convinced to follow a dissent by Dixon CJ in preference to the clear majority decision of less respected judges. After a few years of reading High Court decisions, however, you'll likely have run into more than one example of a later court adopting a dissent of Dixon CJ in preference to a majority holding of other judges. You would then feel comfortable suggesting that a court might accept a result based on a dissent by Dixon CJ even though it was inconsistent with the majority holding that would be cited by the other side.

Using Texts and Treatises At this point a brief interjection on texts and treatises is appropriate. It should be clear that the facts of the case are essential to its precedential value. It is on the basis of those facts that lawyers will seek to characterise aspects of a judgment as ratio decidendi or obiter dicta. Not all lawyers pursue this objective however. While considering, applying and distinguishing cases on the basis of their facts is the immediate challenge facing the practising lawyer and examinee law student, others such as the authors of legal texts and treatises rely

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Mastering Law Studies and Law Exam Techniques

on precedents to develop the "rules of law" - the propositions and doctrines which reconcile all the cases and fit the pieces into a neat and complete jigsaw puzzle that never exists in the real world of litigation and appeals. Be sure you remember the role of a text and use it accordingly. Texts will help you understand an area oflaw and learn the basic principles and legal doctrines forming the infrastructure of a legal subject. They will not, however, spell out the many ways in which precedents and fact situations can be applied or distinguished in an attempt to achieve the result sought by a client.

Using the Precis Reading and summarising the cases gives you the knowledge to begin learning the law. You will become aware of some of the issues that arise in the decisions and recognise arguments that you can use to apply or distinguish the precedents in analogous situations. Many more ideas will flow from the lecturer's analysis of the case and classroom discussion. Both will also be of use in understanding how the decision and arguments arising out of a case relate to those raised in other cases and other areas oflaw. How to learn best and apply this knowledge in the context of a law course geared towards evaluation by means of a final examination are explored in the next chapter.

Chapter 4

Some Studying Hints The all-important skill of legal argumentation in an exam context cannot be learned in a pre-exam rush of enthusiasm and self-discipline. It comes through a long process of exposure to competing principles and dogmas, distillation of facts and doctrines, and assimilation of reasoning and advocacy skills. Studying will hone your exam writing ability and focus it for maximum effectiveness in the exam room but studying alone will not give the tools you need to master a law school examination. The skill of legal argumentation is part of a process, the final step in mastering law studies and law examinations. Each of the preceding steps is as crucial. And thankfully, if you know how to approach them, all the steps are surprisingly easy. Let's look at them in tum.

Classes If you understand how to approach them and what to get out of them, classes can provide an excellent return for a minimal investment. Here are six things that will help you realise maximum benefit from classes.

1. Show up At 9 am on a Monday morning in a law class conducted by the only faculty member whose lectures make memorising the index to the 1903 volume of the Commonwealth Law Reports... sound exciting by way of comparison, you are going to find it hard to believe that there are no easier ways to raise marks. And you may be right for one or two lecturers or subjects - but as a general rule, the most efficient thing you can do at law school is show up for classes, however much of an endurance test it feels at the time. There is no denying that the pain of wading through a nearly incomprehensible judgment in the evening and then struggling to focus on a lecturer's discussion of the case the next day can be immense. If the experience is so unpleasant and you can read the case yourself later, why bother coming to class? Part of the answer is that however

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dreadful the lecture may be, learning by yourself is likely to be that much more agonising. Another part of the answer is because doing it on your own involves no bright lines to mark the point at which you have got all you need from a case. If you are attacking it by yourself, you will never be certain when you have found the principles or arguments your instructor intended you to pick up when the case was assigned. And even if you do find the important aspects of all the decisions you read, in almost every case it would have been easier to let the lecturer do the bulk of the work for you. These two grounds should be sufficient to justify attendance at classes. But the extra work and uncertainty of learning outside of class are not the reasons why I stress the importance of showing up. One of the most convincing reasons for coming to class instead of trying to do it all on your own is simply that you will not do it all on your own. However great your self-discipline and however sincere your intentions, doing the job properly, that is, reading a case and analysing it in depth, is something you are unlikely to do on a consistent basis. And because the job is too great to do properly at the end of the year when it's time to review for exams, it will never be done as it should have been . To make sense of half a year's work takes half a year; there is simply no way it can be compressed into a few weeks. It can be reviewed in that time, but only if it has first been set out and developed over many months of incremental building. A fourth reason you should attend class is to find out where your fellow students are having difficulty. There is a strong likelihood that if something in the course is confusing you, it is also confusing many others. Social dynamics in the competitive environment of law school and ordinary shyness may inhibit you from putting up your hand confessing in front of the entire class that you are completely bewildered. However, if you're lucky there will be some sensible student in the class who realises that what matters in the long run is the mark he walks away with on the final exam, not whether he exposes his confusion to fellow students on the way. He'll probably also realise that there are dozens more in the class wanting to ask the same question he's about to ask but who are too inhibited to do so. Fortunately, almost every class will have one or two students willing to ask the question you wanted to ask but were afraid to and showing up to class will provide the opportunity for you to find the answer to that question.

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Chapter 4 - Some Studying Hints

There remains one final, but very important, reason for regular attendance in class. As those of you who follow this advice will no doubt discover, exams are based on cases covered in class. Inevitably there will be lecturers assigning materials not to be covered in class and inevitably there will be threats to make these materials examinable in the often vain hope that this will stimulate students to read what i~ is unlikely they would otherwise read. The threats are almost always unfulfilled. The exam is based on materials covered in class. It's not mere coincidence, nor a consequence of conscientious concern by the lecturer, that students have been taught everything on which they are to be examined. It is simply a result of the fact that lecturers draw up exams on the basis of lecture notes. Consciously or subconsciously, lecturers inevitably remember best the items they have discussed in detail in class. Often exam questions reflect questions that first arose in class or in hypothetical situations first presented in the course of a lecture. There are few things so depressing as walking out of an exam with the realisation that some or even most of your studying efforts were wasted on materials unimportant for the exam. The only way of making certain you cover the materials you need and avoid those you do not is to come to class. One final point about class attendance should be noted. Physically sitting in class is the first, and least important, part of class attendance. Staying alert is the second, and most important, element. In many cases that will actually take some planning. Occasionally, but far too infrequently, law cases are inherently interesting and you will find yourself reading or paying attention with ease - there are fact situations in some law reports that fiction writers for television or screen have yet to match. Most often, however, students find classes a drug-free opiate and just staying awake can be a struggle. Fortunately, there is often a simple solution to tfie problem. A boring class is usually attributable to a boring teacher, and a boring teacher is usually the result of the lecturer's inability to project to a large class. But however boring the lecture is to the rest of the group, for a small core of students who sit centre and close to the front and who catch the teacher's facial expressions, hand movements, nuances in voice inflection and the occasional eye contact, maintaining attention throughout the class is not difficult. Contrary to popular belief, students sitting front and centre are not asked questions more often. But they can come out of class with

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Mastering Law Studies and Law Exam Techniques

better notes. The better notes are partly the consequence of better attention and partly because those students have caught the emphasis in mannerisms or voice that revealed the most important elements of the lecture. Choosing the right seat is possibly the easiest step to better performance you will encounter in law school.

2. Read the materials before class More often than not, reading cases before class is difficult. Some cases involve peculiar or perverse fact situations or arise out of significant historical events which make them particularly exciting. However, many cases, especially those with unfamiliar legalese, seem turgid as you struggle for the first time through the concepts and principles they introduce. Reading cases requires concentration and intellectual effort sufficient to discourage many from carrying out the task. What's more, it is usually difficult or impossible to perceive the benefit of showing up to class having prepared beforehand. The worst risk appears to be the chance that you will be embarrassed if asked a question you cannot answer - which usually isn't very embarrassing because 85% of the remainder of the class also haven't read the materials. But while you may not realise it at the time, reading materials before classes is important - in fact, it is an integral step in effective law exam preparation, and for many students this accounts for the difference between passing and failing. Why is reading before classes so important? The answer is not because you will learn a great deal from the reading itself. Most cases will leave you more confused about an area oflaw than you were before you read them. Often, it will be difficult to follow the fact situations in a cast" and figure out which party is which, let alone understand the doctrinal analysis and judicial reasoning used to reach a final decision. Reading is important not because you learn from the cases but because it will make it possible for you to learn in class. Unless you are a trained stenographer with many years of experience before law school, you will not be able to write down everything that's said in class. And even if you could, you would not be able to show the inflection and tone that are crucial to effective understanding of spoken English. This means that at best you will be able to record only a fraction of the class proceedings. The importance of getting down the right portion is obvious.

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Chapter 4 - Some Studying Hints

Reading beforehand will give you a rough idea of the problem to be looked at in class. It will help you realise which part of the lecture is background and which part is crucial to the point you are supposed to pull out of that class. It will help you distinguish between the parts that are relevant and those that are unimportant. It will help you identify arguments and resolutions of conflicting doctrines. It will help you understand why the lecturer has chosen a particular hypothetical situation and help you discover the issues the lecturer hopes the hypothetical will raise. Lecturers' questions and hypotheticals often appear again in thinly disguised forms in exams, so it is crucial that you recognise the issues each is intended to raise.

If you do not read first, you will not know what to write down in class. Invariably you will discover after the fact that you have taken down the wrong material. Equally frustrating is the discove1y that you have recorded information of great importance and no longer understand your notes. Comments by the lecturer and other students only make sense in context - if you do not know the context in which they are speaking, you will not have caught the intended meaning of a question or response. You will be left re-reading notes and wondering what they should have said. Once you understand why you are reading materials before class, you will have a better idea how to read them. You could try to read the cases in depth so you understand the arguments and counterarguments. The effort is rarely worth it, however. Unless you have a rigorous socratic teacher, a quick, but not completely superficial, read will give you enough ofa grasp of the dispute to answer most questions and understand which parts of the lecture are crucial and which parts are filler. Your time is at a premium so the most efficient way to tackle the cases is to save the in-depth reading for after class when you know what you are looking for. It will save you a lot of discomfort. But be sure not to neglect doing the in-depth analysis and precis at some time - the process covered in Chapter 3 is an essential one. A final comment on class preparation is needed. Some students are unable to prepare for class because of other commitments or responsibilities. The solution relied upon by many in this situation is to tape lectures, read the cases later, and then listen to the tapes while making notes. Whether you will be able to tape depends on your lecturer, of course. Some permit it, others do not. The potential disadvantage of this technique is that you have to sit through the same lecture twice, although that could be an advantage in some cases. It is a

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Mastering Law Studies and Law Exam Techniques

luxury that few students have time for, however. Furthermore, students who try the taping route often discover its fatal flaw - because they have the lecture on tape they tend to put off the reading, listening and note-making, often until the work has advanced too far and they have slipped so far behind it is almost impossible to catch up.

3. Ask questions Law is not an easy discipline to study. There will be many times when you are lost, sitting in class not having the slightest idea what is being discussed. You may have done the reading and listened carefully but still find yourself missing the point. When that happens, the natural reaction for most students is to let it ride in the hope that another student or a textbook will make it clear later. That response is a mistake - do not leave the class not understanding something that has come up in the lecture. However confusing a point may be at the time it is raised, unravelling the mystery is much more difficult after the fact outside of class. The odds are you are not alone in your confusion and if you do not understand something it 's likely most of your classmates are also lost. Other resources may also prove unhelpful. Outside of class, once the problem is removed from the context in which it was raised its nature is difficult to remember. Texts and other sources will not approach the subject in exactly the same manner and recognising the problem in the new environment is often difficult or impossible. Sometimes your confusion will be the result of negligence by the lecturer who has inadvertently skipped a point in the development of a lecture or presumed you understood some important background point of which you were actually unaware. But often the confusion is deliberate - the result of a carefully managed lecture designed to demonstrate how two competing doctrines both apply to the same fact situation or two irreconcilable precedents should both govern the situation at hand. In such cases there often is no answer to your question and you will not learn a point of law by asking it. Instead, and much more importantly, you will confirm a divergence of jurisprudence, the very thing exam questions are based on. In either case, the reason for your confusion becomes clear and you are in a better position to apply the material in an exam question. The corollary to the recommendation that you ask questions whenever you are confused is the importance of listening whenever other students ask questions. The odds are good they will have caught

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Chapter 4 - Some Studying Hints

a discrepancy or conflict you missed and their questions will reveal one more dichotomy to be applied in the exam.

Notes and Review Notes Preparing for a law exam is really only a matter of preparing review notes. If you learn and understand material well enough to prepare good review notes, you know it well enough for exam purposes. Your marks will reflect the point at which you discover that preparation of good review notes is almost synonymous with the successful study of law. For the top law students, studying consists only of review note preparation and practising to apply those notes on previous years ' examinations. Studying in the traditional sense of reading notes time and again is a useless exercise in law school and the sooner you break old habits and establish new learning patterns the better you will do. Conversely, if you have not mastered the art of making law review notes, the sincerest efforts will bring you little reward in marks and the risk of failure is great. Some fail because they do not work. Most law school failures have put in the time, however. Some have worked day and night, weekdays and weekends. Too late they discover that great energy expenditures count for nothing when it is spent on the wrong type of exam preparation. Review notes are actually the centre stage of a three step process. That process commences with the initial recording and correction/ supplementation/revision of lecture notes. It finishes with a brief outline of the central issues covered in your review notes. The four points below will set you on the right track for preparing effective review notes. Read the following paragraphs carefully - they can easily pay dividends in the form of higher marks for less effort .

...

1. Review your notes right after class or the same evening However commendable your note taking abilities are, you will never catch everything that happened in class. It is, therefore, crucial that you first review your class notes as soon as possible after you put the material on paper - ideally, it should be done immediately after class or on the same evening. Even leaving the job of putting class notes into shape until the weekend can be dangerous. After three or four

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Mastering Law Studies and Law Exam Techniques

days you will not remember exactly how the lecturer explained some point that now appears cryptically in your notes, you will no longer be able to articulate the crucial distinction or reconciliation that came to mind in the closing minutes of class and you will be at a complete loss to comprehend the now meaningless short form expressions that stood in for words or arguments you no longer recall. If you review notes while the material is still fresh in your mind, you will be able to fill in all the gaps. You will remember what the lecturer and fellow students said, the context in which things were said, and the examples and hypotheticals so crucial for exam purposes that were tossed out in the course of the lecture.

If you haven ' t completed the precis of cases prior to this time, now is the time to do that. Once the precis have been completed and incorporated into your class notes, you should not have to go back to the primary sources, that is, the cases, again. The notes should contain sufficient information on which to build review notes. Time spent on this stage of exam preparation is well invested. It will be impossible to re-read all the cases covered in a year. This means you have to do it right the first time around. A word of caution: in a guide he prepared for Monash Law students, Richard Fox began with a stark warning: "If you think that you will have time to bring your scattered lecture notes up to date and complete the reading of the additional references and will be able to consolidate all the material into a coherent whole between the end of lectures and the beginning of the exams, you are in trouble." Professor Fox 's warning bears repeating - several times. In other disciplines it may be possible to cram and fit a semester's work into the short period between the end of classes and beginning of exams. It is not possible in law. There simply isn't time in that brief period to read the cases, work through trails of legislation, prepare the precis of cases, prepare review notes, and practise old exam problems in one subject, let alone in several. And even ifthere were time to mechanically perfmm these tasks, an understanding of how to use concepts and precedents in legal arguments comes from working with the materials over an extended time, gradually appreciating how cases looked at several weeks earlier can be used to reinforce doctrines in later cases, how later cases can be used to distinguish the principles set out in earlier ones, and so forth. Distilling the mass of materials covered in any law course to the few salient points that will be used in the short period of an exam is a process that takes a semester - don't make the mistake of thinking

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that if you fall behind you can catch up when classes end. It will be too late.

2 . Consolidate your notes into review notes The following instructions are probably the most important tips in this book. Following these suggestions is not merely helpful, they are essential steps for writing successful law exams. Preparing proper review notes is the most difficult exercise you will encounter at law school. It is so tough that most students do not bother to do it properly. The price for not having good review notes is high - you cannot do well without them - and the reward for making the effort is substantial - it's all downhill from the review notes. Good review notes may not leave you relaxed during the exam but they should leave you confident. It is impossible to prepare proper review notes without understanding what information you need for a law examination. The relationship between legal theory, legal practice and law examinations was reviewed in Chapter 2. It should suffice to repeat at this point that writing an effective law examination involves four distinct steps: Locate all the legal issues, that is, issues over which a conflict could or has developed; 2

Outline all the possible resolutions of the issue/conflict;

3

Show how application of the different doctrines and rules you have learned would affect the resolution of the issue, pointing out how alternative doctrines and rules lead to conflicting resolutions;

4

Explain how various precedents support the alternative resolutions and explain why they can (or should) be distinguished, including showing how the fact situations in the precedents differ from those in the exam problem, noting the effe~ts of differences in jurisdictions, etc.

Your review notes should contain the infonnation needed to can-y out these four steps, no more and no less. They are a synthesis of important concepts and ideas, not a review of everything that appeared in the original notes. Far too often, students see review notes as a comprehensive and improved set of notes based on original lecture notes. To prepare review notes they take the originals, rewrite (or type) them more neatly and add organised headings and perhaps tabs for easy identification. Other students consult textbooks and other sources

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Mastering Law Studies and Law Exam Techniques

to prepare review notes that can substitute as a survey of an area of law or the beginnings of a legal encyclopaedia. The preparation of such notes requires a great deal of time and students assume that the effort must bring some reward in the end. It does not. More often than not, in fact, it is a complete waste of time. If your review notes are properly prepared, they will contain the answers to all the questions appearing in the examination paper and the three hours in the exam room will be spent applying the issues and problems set out in the review notes to the actual fact situations found in the exam paper. Redrafting your lecture and home study notes into a neat and tidy set of study materials is physically and mentally tiring. It is not a strenuous intellectual exercise, however. Redrafting or expanding notes requires no great comprehension of the doctrines and legal arguments that underlie the cases covered in the course. Preparing genuinely effective review notes, by way of contrast, will be the most intellectually challenging task you face in law school. To prepare profitable review notes you will have to distil the essential conflicts raised in the cases and recognise which facts influencing the resolution of the conflict will be usable later to demonstrate why a precedent should or should not apply to the fact situation given in the exam. The most difficult part of review note preparation, and the aspect that generates almost its entire learning value, is organising the notes. Establishing headings and subheadings is a consequence of synthesising the cases and deciding what issues they raise, how those issues can be used and what facts were essential to the decision and what changes in facts would have changed the result in each case. Because the preparation of review notes involves the synthesis of doctrines, arguments and fact situations, they cannot be prepared following each class or each case studied. The logical point at which notes should be prepared is at the end of an identifiable segment of the course when attention is being directed to new areas of law. At that point, the l 0 or 15 cases covering the various aspects of the law just completed can be reviewed. If your course is based on a casebook or compilation of cases prepared by your instructor, you may find the chapter headings or subheadings separate the materials into handy review note topics. The basis of review notes is legal issues. You should not organise the notes around the cases; instead, the notes should fit in to support arguments raised under the headings established by your issues. You should not repeat the facts of the case and an explanation for the

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Chapter 4 - Some Studying Hints

holding. If you have read the case once, written notes about it in class, tidied up those notes after class, and read the class notes in preparation for drawing up your review notes, you know it well enough. It is highly unlikely that you will forget the facts of the case or the holding before the end of the academic year. And if the worst comes to the worst and you do not recall it when you prepare an overview of your review notes prior to the exam, re-reading your class notes or even the case itself at that point should leave an impression that will remain until after the exam. You should know the cases well enough that details on the review notes are unnecessary - a simple reference to the "snail in the bottle" case will suffice. When planning your review note headings, you should project forward to the arguments you can use in an exam. For example, you might study three or four torts cases involving infants, some of whom were liable notwithstanding infancy (or their parents were) while others were not liable because of their infancy. It is not a course on infancy and it is highly unlikely that an exam question will ask you directly about the liability of infants. More likely, the question will be about a possible tort (whether a tort has been committed will certainly be another issue the examiner expects you to discuss) committed by someone to whom the infancy doctrines might apply. Review notes should be tailored to present you immediately with the issues you would raise in such an examination question - under a heading such as "defences" you might use the subheading "infancy". And under that heading will be all the arguments supporting a defence of infancy and all those against such a defence. When you have finished you should have two, three or four legal propositions, cases to support all of them and important aspects of the cases that can be used to distinguish them from the facts in the exam or show why the fact situations are analogous. The actual reference to the case should be limited to the name or enough of it to remember the case by, a.. short description of the facts (not more than a few key words long, just enough to trigger a memory) and the proposition of law for which you believe the case stands. Always keep in mind how the review notes will be used when they are being prepared. Main headings should be issues because that is what you will first look for in the exam - "Assuming a tort, are there any potential defences available? The first possibility is infancy". Once you have established the issues, you turn to the competing doctrines - "P will argue this doctrine is the law to be applied while D will

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Mastering Law Studies and Law Exam Techniques

argue that another doctrine should apply". The next step is applying and distinguishing the cases supporting the doctrines - "P will rely on x case to support his argument while D will argue that y case governs. P might argue that the infant in y case had these special attributes that do not apply to the infant here while D will argue that the ratio of the x decision only applies to torts of the 'so-and-so' type, such as that found in the x case". Finally, you will outline the fallback arguments - "If P is unable to distinguish they case, he might argue it is not binding or as persuasive as the x decision. If that fails for soand-so reason, he will argue it is wrong and x should be followed in preference toy because ... "and so forth. Review notes of that area of law should set out all the information studied so that it is readily accessible and adaptable to an answer similar to that set out immediately above. This classification process is the point at which you "learn" the dynamics of the law. To synthesise class notes into review notes, you have to step back from the cases you have read, their facts, holdings and reasons for judgment, and articulate first what propositions the decisions stand for and why they give rise to those propositions and, secondly, how they can be fitted in with all the other cases and legal propositions you have encountered in that area of law. When you have accomplished this step you have learned the law and will be fully prepared for applying it in an exam. If your review notes consist of the information in your class notes simply reorganised or rearranged, but not synthesised into exam usable propositions and rationale, you will have no framework in which you can tackle an exam question.

3. Prepare a review overview In the process of drafting review notes you learn the law. Usually you learn it well enough that one or two readings through the review notes will be sufficient to remind you of the fact situations, arguments, etc that are detailed in your lecture notes. There may be some areas from the first months of classes that are difficult to remember when you re-read the review notes at the end of the year, but a quick reading of the original class notes should remind you how you fitted the cases together and why you drew out the principles and arguments that you did in the review notes. Since you know all the information contained in your review notes, you should no longer have to rely on them during the exam. For exam purposes, you need a review of the review notes - a brief overview of

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issues and principles with a guide to the arguments to be raised under each point. The review overview for an entire course need be no longer than four or five pages. The review overview relies on key words and cases to trigger your memory- it is not intended to explain anything. For explanation or elucidation you can tum back to the review notes. Rather, the review overview is a checklist of points you should make certain appear in your exam answers at the appropriate point. The function of the review overview can be illustrated with an example. Let's take a torts problem in which you have concluded a tort might have occurred. The next step in this situation is to consider all possible defences. They will all be listed in the review overview. Thus, in the review overview there should be a heading of"defences", one of which will be "infancy". That defence will be followed by the names of appropriate cases. No more should appear in the review overview. The function of the overview is simply to remind you to mention the defence and the cases will remind you of the arguments and counter-arguments you will raise in your discussion of the possible defence. You should remember those arguments from the exercise of working the cases into the review notes. If the worst comes to the worst and you suffer a blank under exam pressure, your case index (see below) will help you turn to the appropriate section of your review notes where the essential points of each argument and counterargument will be listed.

4. Index and tab your notes However hard you study and however great your memorisation skills, it is inevitable that you will forget something and at some point in an examination wish to refer to your notes (assuming it is an open book exam). Many students find an indexing and tabbing system to be useful at that point.

...

The following suggestions on indexing and tabbing are issued with a strong caution. Indexing and tabbing are not a substitute for synthesising and consolidating. Under the time pressure in an exam situation you need to know the materials whether it is or is not an open-book exam. The only way to learn the subject in an exam-usable manner is by producing review notes. And if you do need to look at notes, the only notes that will be of value in the exam environment will be concise review notes setting out the points you should be mentioning in your answer. Organising class notes or non-synthesised review notes by adding tabs to the side of the paper or placing an

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Chapter 4 - Some Studying Hints

Mastering Law Studies and Law Exam Techniques

index at the front is no substitute for preparing review notes. Directing your attention to the appropriate part of your notes is of no value if you have not previously synthesised the materials and set out the important points in a manner that allows you to remember and understand the points at a glance. With that warning in mind, it can be conceded that indexing and tabs are useful for quick access to properly prepared review notes. The most efficient way to proceed is first to number all your pages - class notes from 1 on and review notes as R 1, R2, etc. The notes should be bound so that they will sit flat at any page (you will need your hands for writing, not holding notes open) and so you can have easy access to every page. A ring binder usually works best. Once the notes are in a binder, they can be tabbed by subject so you can flip instantly to any topic areas. If you have prepared properly, you will probably find that you will refer to the review notes (and, if need be, class notes) only when you cannot remember all the points associated with each argument. At that point you may tum to the review notes for edification or class notes if you forget the details of a case listed in the review notes or the significance of a buzzword or expression. Unlike the tabs, indexing should not be done by subject matter. A look at your review overview should direct you to the correct subject area. You can then narrow down the precise point you want to look up by reference to the appropriate case. Indexing, therefore, should be by reference to case names. Rather than use a strict alphabetical listing, cases can appear under appropriate headings in the index. Within each heading or subheading, they can be listed in the order in which they appear in your notes, not in alphabetical order (there will only be four or five per subject heading). Page references should be to the class notes and review notes. Students often find the case index serves an important role as a study aid separate and distinct from its function as an index. You can use the case index as a quick self-test review by running down the list of cases and articulating out loud a few words to show you remember what the facts and holding of the decisions were, as well as the principles for which you would cite the cases in an examination. When you can run down the entire list without resorting to notes, you are ready for the exam.

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5. Develop memory aids for closed-book exams Occasionally, law lecturers give closed-book exams. The difference between an open-book and closed-book exam is not as great as one might first imagine. The ability to consult notes in an open-book exam is largely illusionary - at best there is time to glance at an overview of principal points. Subject to one important exception, preparation for an open-book exam means learning the materials as well as for a closed-book exam. The significant exception is the fact that you do not have to memorise your outline for an open-book exam, but you do for a closed-book exam. So, a key step in closed-book exam preparation is to consolidate your outline into a mnemonic that can be taken into the exam in your head. "Dale's old car eats rusted iron" got me through Constitutional Law, the first closed-book exam I had in Law School. In fact, it got me the prize in Con Law. The study group I was in had concluded that there would probably be a question on dealing with state versus federal powers to legislate in the field of bankruptcy and insolvency. So we made a list of ways in which the laws could be interpreted, first, as falling within areas of federal jurisdiction and, second, as falling within areas of state jurisdiction. We then chose a series of words each of which started with the same letter as the key words in our points and came up with a silly but easy-to-remember ditty. The first thing we did upon opening the exam answer books was to write the mnenomic down the left side of the page and jot down one or two words to the right of each letter to remind us what it stood for. Then we read the problem and worked to incorporate all the arguments into an answer based on the actual facts of the problem.

Study Groups For some students, study groups make the difference between passing and failing. For others, they boost average marks to honours grades. And there are some who claim they are of no or minimal value. Only experience will show whether a study group is right for you. But for the vast majority of students, they do work. For those students, study groups form an integral part of the review preparation and sample examination processes. Although I have refrained from discussing them prior to this point, their operation should commence long before the final exam preparation period. They were left out of the picture

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Mastering Law Studies and Law Exam Techniques

only because you would not understand their significance before you were aware of the tasks facing you. Unless you possess an extraordinary attention span and enjoy unlimited reserves of self-discipline, you will find it difficult or impossible to apply yourself for the hours on end required for effective law study and review. In the company of others, however, much of the pain vanishes. Thinking at the intensive level necessary to understand and fit together diverse legal concepts is tiresome but sharing the experience with others somehow makes the process tolerable. As the studying process becomes bearable or even fun in many cases, you will find the dreaded boredom dissipates and you are able to concentrate deeply for a sufficiently Jong period to understand and synthesise complicated doctrines and precedents. The value of a study group thus arises first at the review stage. Terribly enthusiastic students meet often, sometimes once a week or more, to discuss the cases studied that week and how the doctrines they concern relate to the other topics forming part of that course. More common is to meet at the end of a topic area when review notes for that section are being prepared.

It is not only easier to fit the cases and statutes together when you can call upon a number of minds to address the task at the same time, but it can also be more effective from an exam preparation viewpoint. As you work through the materials and attempt to distinguish rationes decidendi from obiter dicta and extract usable principles and precedents from the mass of information you will have read, you will likely encounter wide-ranging debate among yourselves as to the meaning and significance of cases. As you explore the interpretation and importance of cases, you discover how they can be used and distinguished in legal arguments similar to those you will be making in the exam. Often making the attempt to explain a case or a proposition oflaw - or making the attempt to explain why you cannot understand a case or a proposition of law - will of itself enable you to understand what you could not understand before. And do not be afraid that you will absorb errors from the erroneous explanations of your fellow students. No doubt there may be occasions when you will, but very often you or they will detect the errors as they are verbalised. And the number of occasions when you are led into error will be far outweighed by the number of occasions when you all learn from the discussion process.

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I suggested earlier that this process of synthesising everything you have learned into review notes is the essence of learning the law. As Stanley Kinyon once described it, it is the "assembly line and finishing process in your mental factory''. 1 As every law lecturer will tell you, the best way of learning any subject is to teach it. What is true for your instructor is also true for you. After reading your notes and drafting a review outline, you may feel confident that you have grasped the essence of the materials. Unfortunately, that intellectual confidence may not translate into exam writing skills. One problem with the human mind is its speed. We are able to think much faster than we can atticulate, and thoughts have a habit of flowing into each other. On route they may cross over some formidable barriers or very deep crevices without our knowing it. The disjunctions become evident only when we try to map out our thoughts in words. The only way you can be certain you have understood and synthesised your materials well enough to avoid any logical leaps is to explain them to someone else. When you think you have mastered an area of the course, "teach" it to the fellow members of your study group. As you articulate it for the benefit of others, you will become aware of any gaps in your comprehension, reinforce your understanding of the areas you have dealt with successfully and focus the inter-relationships of various precedents and doctrines in your mind. Once you are able to explain convincingly to your companions how the cases and materials can be moulded together and taken apart in various legal arguments, you will be able to express the arguments sufficiently well in an exam setting. Lecturers know quite well the benefits of study groups. If you have any problems finding classmates for a study group, just ask a lecturer or tutor if he or she can take a moment or two of class time to assist in setting up some study groups. Inevitably there will be other persons in the class with the same goal of forming a study grottp but sometimes it takes a little help from the lecturer to bring people together.

Practising Old Exam Questions Practising old exam questions is the glue that sticks everything else described in this book together for exam purposes. You do not necessarily require a study group for this exercise but initial practice I

Stanley Kinyon, Introduction to Law Study and Law Examinations in a Nutshell (West, St Paul, Minn), p 79.

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exams are usually far more effective in a study group context and the following discussion presumes you are working in such a group. Practising questions from old exams is a transitory exercise, completing the review stage and beginning the exam application process. It will give you the opportunity to apply your knowledge and at the same time force you to recognise the conflicts in your review synthesis that you had not successfully confronted previously. In this way practice exams can be used to reconstruct your review notes into an improved exam-oriented version. One hour spent practising exams with a study group can prove more valuable than many spent rereading review notes. Fortunately, with the company of a study group, spending many hours practising old exam questions will seem far less tedious than passing a few hours in solitude with your notes. There are two aspects to the application side of practice exam questions. First, practising old exam problems will give you the self-confidence you need to be able to use the knowledge you have mastered. The terror you feel when you first read through an exam problem and realise you should be able to answer it but have not the slightest idea where to start will subside quickly when you discover that you are not alone and your companions all experienced the same initial reaction. As you attack more exams and the process becomes easier, you will begin to understand the enormous advantage you will enjoy over the large portion of the class that will not have included reviews of exam papers from previous years as part of their exam preparation. The second benefit of practising prior years' problems in a study group is the degree to which it will help you acquire and polish your issue spotting and legal argumentation skills. In a study group of four persons, each member is likely to recognise 25% of the issues and consequent arguments that arise on the first exam problems attempted. Even after discounting for overlap, you can still end up with 70-80% of the potential marks by pooling efforts. The importance of this assistance cannot be underestimated. In the final exam you cannot work in a group. If you want to find quickly more than a quarter of the marks for each problem, you will have to master the art of issue recognition and argument formulation. Fortunately, the same issues and arguments consistently reappear year after year in law exams - only the facts of the problems change. If you have worked through practice exams with a study group, you'll know which issues are likely to be embedded in the exam problems. While the rest of the class is

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struggling to see if the facts raise legal issues, you'll already know the issues to be found and will be on to the next step of uncovering how the examiner has incorporated your list into his facts. Some law teachers advise students in study groups to attempt answers individually and meet to compare answers. However, for a number of reasons, many students find this to be a less effective way of practising exams. Remember that the issues and arguments don't change from exam to exam, only the facts. The prime objective of practice exams is to master spotting issues and articulating the arguments as to how the issues are likely to be resolved in court. If you practise this in a group, you're more likely to remember the arguments since you' II have discussed their strengths and weaknesses. A dry summary on a piece of paper is difficult to remember in an exam situation. But if you sat around the kitchen table making an argument and having someone else counter with the contrary argument, you're more likely to remember the points on either side. Last, but not least, the advantage of working through exams in a group is that it doesn't seem like work. The small puns that are inevitably thrown into the discussion, the slight touches of satirical tone added to a counter-argument to score a point, the challenge of thinking of a response to a friend's initial conclusion - together, these make the time pass quickly. Sitting at home, alone, trying to concentrate for hours on end with an old exam question is truly a test of self-discipline. Why do it when the alternative of learning with others will provide you with more information, develop better skills in presenting the information and the counter-points, and do it all in an atmosphere that makes the hours pass quickly? Finding the issues in the first practice exam you attempt as a group is a long process. After your initial panic and assumption that you are going to fail, you will somehow muddle your way through the exam. The next year's exam that you attempt is easier4and the third one easier still. By the fourth exam you will have the issues and arguments ready. Instead of searching the questions for issues, you will search the problems for the appropriate place to raise the issues you know should appear. The process of issue application becomes faster and easier as you complete more and more practice exams and begin to recognise the same themes appearing in many different garbs. And with practice you will become increasingly proficient at explaining the issues and their ramifications. In the end, everyone in the group should be recognising most of the issues and arguments.

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Eventually each of you should reach the point where recognition of an issue automatically triggers a lucid articulation of the arguments associated with that issue and their application in the context of the particular fact situation in the problem. You will be pleasantly surprised to learn how quickly you are able first to absorb and secondly apply the knowledge gathered from the other members of your study group. You can take particular comfort in the knowledge that the first exam questions attempted by many of your classmates will be those appearing on the final exam, at which point they will be experiencing the terror you felt long before when faced with your first practice question in your study group.

What to Do if You Fail The procedural rules regarding examination failures differ from institution to institution and their application will vary according to individual circumstances. If you believe non-academic factors such as illness, death in the family and so forth have disrupted your studying or affected your exam performance, you should take immediate steps to obtain official verification of the problem (for example, a doctor 's certificate) and complete the appropriate documentation used in your faculty to notify the relevant officials or committees of your situation. Depending on procedures, individual circumstances and the outcome of any appeal channels pursued, you may be given an opportunity to write another exam in the subject or to take the course again. In any case, if you fail you should contact your instructor as soon as possible after results are announced. Reviewing your exam with the instructor is the only way to discover what you are doing wrong. If you are given an opportunity to write a supplementary exam, it is the only way you can learn how to improve on your unsuccessful effort. It may also pay dividends over and above the educational value of the review session alone. Committees and officials reviewing the performance of weak or borderline students often take into account the efforts made by those students to seek remedial assistance when deciding whether or not those students should be given an opportunity to sit for a supplementary exam or re-enrol in a course or, sometimes, whether they should be re-admitted into the faculty in the future. In some cases students fail because they have not worked during the year - they attended few classes, read few cases, spent little effort

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preparing review notes and did not bother to practise on previous years' exams. But many, and often most, students failing exams did work. They either did it incorrectly- for example, failed to synthesise notes when compiling review notes - or they failed to understand how to apply all the knowledge they have learned to an actual problem in an exam setting. Until they receive their mark, many students are unaware of the shortcomings of their exam preparation techniques. For those of you who have fallen into this group, reviewing your paper with the instructor will be your last chance to recognise and rectify the problem. As you review your paper with the instructor, you should jot down notes of issues you missed and arguments you failed to articulate well. It is unlikely that you will be able to catch them all and still pay attention to the instructor. A good idea, therefore, is to sit in the library immediately after your review session and write down all the points you recall from your meeting. They should be recalled in detail - what seems fresh in your mind minutes after hearing it may be a blur days or even hours later. The next step is to rewrite the exam on your own. Do this without the benefit of the notes you prepared during and after the review session, referring to those notes afterwards to see how much you have learned. Finally, when you have an answer with which you are happy, ask the instructor to have a look at it and tell you whether you understood the criticism of your original effort and adjusted your exam answering technique accordingly. Keep up the process until you have produced a satisfactory result or exhausted the patience of your instructor. If you are not able to obtain help from your instructor, consider asking for help from tutors or fellow students who did well. One final word is needed about reviewing final exams with the instructor. Following each exam period I am visited by about a dozen students who wish to review their papers with me. F@ur or five of those students have failed and are visiting me as part of their preparations for a supplementary exam. The remainder have passed; in fact, the majority of those remaining have done well. They are reviewing their exams to find out where they missed issues, failed to develop fully arguments or neglected to discuss the consequences of the conclusions they reached. These students are never again examined in the subject I have just taught them. But they realise that the key to success in legal studies is perfecting exam technique and using every opportunity to hone their exam-writing skills. If you really want to maximise marks, it is an example worth following .

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Chapter 5

Some Basic Rules This chapter reviews some of the faults common to law examination answers and offers general hints on how to avoid these common errors. In addition to listing the traps you should avoid, it offers a number of general hints on exam writing techniques.

Some Tips J. Prepare an answer outline

In some Jaw exams you may be given time to read and make notes before being permitted to commence answering the questions in an examination book. Other Jaw exams will be accompanied by the examiner's instructions to organise carefully your answer before beginning to write but no specific reading and noting period will be provided. In either case, you should map out your answer in point form before you start to draft the final answer. The first step is to read carefully the exam question, underlining or highlighting important points or issues as they appear. Trust your instincts and underline facts that you suspect will have something to do with one of the issues. If your reading triggers any points in your mind, jot them down immediately. You may recollect a case or a principle or see a potential conflict with a legal doctrine or statute whatever the thought, put it on paper. Nothing is more frustrating than reading a question for the second time and encountering a memory lapse - knowing there was a case or issue you saw last time but can no longer recall. The odds are good that once you've lost a point, it is gone for good. Your frustration at missing something you had only moments ago on the edge of your thoughts will usually suffice to suppress it for the remainder of the exam. There is no reason to take chances - put it in writing the first time the thought occurs. After your first reading of the exam problem, you should begin an outline of the answer. The question may be couched in general terms - "advise so-and-so" - or be broken down into a number of separate elements. Your outline should be drafted to conform to the style of the

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question asked. Begin by identifying in point form the principal legal issues raised by the facts and the arguments that either party will make with regard to each issue. Be sure to jot down all appropriate cases that come to mind and include any points you noted on your first reading of the problem. You should then re-read the problem and fill in the outline by noting all the facts that may play a role in developing legal arguments about the issues. There may be facts similar to those found in relevant cases which will be used by the party seeking to apply those cases. Other facts may not have been present in the applicable cases and can be used to distinguish those precedents and support an argument for a different result this time around. A good attitude to start with is to assume that every fact in the problem serves a purpose and should be woven into your argument. In a law exam, most descriptions of persons, places and events are not included just to give you a fuller picture of the background to a dispute - some legal issue turns on almost every fact given. As a result, a second reading of a problem should involve two separate steps. The first task is to identify all facts that are relevant to the issues and arguments you have already found. The second step is to take all the remaining facts not yet allocated to an issue or argument and decide whether they are relevant to an issue or argument you missed last time around. Not every fact is meant to fit into an argument. An examiner might introduce irrelevant facts into an examination paper to give an air of artistic verisimilitude, to start false leads or simply to make the reading of the question itselfa learning experience by reminding students that other areas of law also impinge on the issue. Nevertheless, you are well advised to assume a fact is relevant until you are convinced otherwise. Finally, you should tum to your review overview and read through the list of arguments and/or cases located under the headings for issues found in the exam problem. The main reason for this last step is to ensure you have not missed any arguments or important points. A secondary benefit of this cross-reference is to identify subsidiary issues or arguments to which the unallocated facts may fit. You should assume that all the related issues and arguments that appear on your outline sheet can be found in the question. If they are not raised directly by the facts in the question, look for ways in which they can be introduced to your answer by way of analogy. Every point you catch at the answer outline stage produces marks. It is not true that spending time on an outline when you could be drafting a final answer is a poor use of very limited time. In fact, an exam

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Chapter 5 - Some Basic Rules

outline is the most important time saving device available to you. It is the only way of maximising your marks in the face of the real time constraints that are built into every law exam. An outline will boost your chances of picking up the many marks allocated for issue and argument recognition. It will also allow you to capture many of the marks allocated for identifying the relevant precedents and statutory provisions. Finally, it will position you to capture the elusive marks awarded for lucid arguments that apply and distinguish the cases and doctrines in a convincing fashion . Most importantly, it will provide a framework that allows you to accomplish these goals quickly and move on to the next question.

2. Organise your answer Students who do not prepare answer outlines usually produce unorganised exam answers. It should therefore come as no surprise to learn that most unorganised answers miss a large number of issues and arguments. The cost of submitting an unorganised answer is compounded by the damage an unorganised answer will do to the points that you have caught. Without an adequate framework, you will find it impossible to fully develop logical arguments. An examiner reading an unorganised answer will be left with a negative impression about your ability to devise cohesive legal arguments. As a result, the examiner may tend to discount whatever good points you do make. The key to an organised answer is the answer outline. Keeping the following suggestions in mind will help you stay on track. (i) Do not throw out issues in a scattergun fashion It is true that law examiners give marks for each issue discussed in an exam answer. This does not mean, however, that you can maximise marks by throwing out every issue and every rele~ant precedent and statutory provision in a scattergun fashion. If absolutely everything you know is thrown out and you've coincidentally mentioned every point that the examiner thinks should be discussed, you might, but just might, pass. Almost certainly, a bare pass is the best you could hope for.

It is true that issue spotting and identifying relevant precedents is the first step to drafting a good law exam answer. It is merely a first step, however. Throwing out a list of issues, precedents and sections in an unorganised scattergun approach is of little value by itself. The

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real marks in a law exam are awarded for using the information, not transferring it on to the paper. Marks are awarded for discriminating between issues - identifying which are real issues that might be argued by both sides and which are phantom issues over which no one could seriously argue. Marks are awarded for identifying primary and subsidiary issues - subsidiary issues will only arise if a primary issue is decided one way or the other. For example, a defence to liability in a contract action will only be relevant if we first establish there is a binding contract. Marks are awarded for identifying the relative impact of different issues. For example, some issues are important to the main action such as whether or not a person will be liable and others are relevant only to less important issues such as the quantum of damages.

In short, don't mention an issue unless you discuss it properly. Finding the issues is important, but they are only valuable if you've done all the remaining steps outlined in this chapter - organising the issues, developing the arguments and counter-arguments around them, and so forth. (ii) Do not wander in your answer To discuss an issue effectively, arguments and counter-arguments must be matched and carefully balanced to ensure all facets of the debate are canvassed. A good exam answer satisfying these requirements cannot be developed if you deal with a problem on the basis of parties or sides instead of issues. The actual format of the exam answer can play an important role in helping or hindering effective discussion of legal issues. It is possible to write a law exam answer by running through each side's arguments separately-for example, Sally will argue l, 2 and 3 and her opponent will argue, 4, 5 and 6. To answer a Jaw examination question effectively in this format, however, requires a near herculean effort matched by a corresponding skill in drafting. It is almost never successful. The alternative answer format is to deal with the legal argument issue by issue. By structuring your answer in this manner, you can most effectively show the dialectical nature oflaw and the legal issues raised by the conflict. You will be able to discuss both sides of the issues and demonstrate your ability to recognise the strengths and weaknesses of the various arguments for and against each legal proposition you raise. A bonus advantage to this approach is its moderating effect on any

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Chapter 5 - Some Basic Rules

tentative conclusions you may offer. By first pointing out the strengths and weaknesses of all relevant arguments, you will necessarily qualify any conclusions you reach. "Sally will argue that legal proposition X applies. The opponent will seek to distinguish it by pointing out that facts a, b and c were present in the Smith case, which supports proposition X, while facts a, b and dare present in the exam problem. The opponent will further argue that the Jones case is in fact more appropriate because the legal proposition supported by that case is more analogous to the facts at hand, etc ... " (iii) Do not answer in the form ofa long continuous essay or cursory point-form summary The continuous answer is dangerous for a number of reasons. To begin with, it leads to a danger of poor time allocation between issues. Once you reach the maximum number of marks that will be given for the discussion on any one issue, further writing on that point is a waste of time. If you do not separate your answer into distinct issues, you will not be able to allocate your time efficiently. It also makes it more difficult for an examiner to readily dispense marks. The examiner has a marking guide with issues listed in point form. A response presented as one continuous essay requires the examiner to read through the material searching for points for which marks can be awarded. By way of contrast, if you organise your answer into issues and further organise the discussion within each subdivision, you will be inviting marks from the examiner by making the examiner's task easy. The same discussion may receive far more marks if it is presented in a manner that leaves the examiner with the impression that you have covered the issues and arguments in an identifiably comprehensive manner. Note that the acceptable alternative to a continuous flow of consciousness essay is not a point-form answer which consists of a heading, two or three abbreviated propositions, an arrow, a couple of other hieroglyphics and a row of dots. While examiners will make due allowance for the fact that you are writing in a hurry and under examination conditions, they will expect a coherent piece of English. The dangers of a point-form approach were well illustrated by Sue McNicol in her comments on a sample exam answer in the first edition of this book. She said:

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Mastering Law Studies and Law Exam Techniques

At first blush this appears to be a well-organised and concise answer. The student appears to have allocated time carefully and set out the issues in a brief, point-form style. However, there are a number of hidden dangers in this style of answer which are evident in a careful reading of the answer. For instance:

raises the risk of making your answer look unorganised, it is better to mention a point later than omit it completely. As Richard Vann pointed out in his contribution to the first edition of this book, "examiners are quite used to interpolations".

- there is an inclusion of far too many irrelevant points and not enough expansion of the pertinent, relevant issues;

(v) Present your arguments fully before presenting the conclusions to which they lead

- there are virtually no definitions provided or legal authority given for important legal concepts and principles which are introduced into the answer;

Ideally, students would be advised to think their arguments through to their conclusions before beginning their answers. Time limitations make this a near impossibility in an exam setting. Even outside the context of an exam, it is often difficult to formulate conclusions without developing the arguments first on paper. As my colleague Peter Balmford said to me, "I agree that a certain amount of time devoted to planning an answer is very desirable but I think it is usually better (once that quite small amount of time has been used up) for the examinee to get on with the answer, even though the ultimate conclusion is not yet clear. I often found, in the practice of the law, that the best way to write a letter of advice was to begin and see where I was led: 'How can I tell what I think until I see what I say?'"

- there are often no legal or factual reasons provided as support for some rather glib conclusions which are made; - the bald conclusions just mentioned are commonly not followed through to their logical, legal or practical end result; - the conclusions made are too firmly stated. Had the conclusions been presented as possible, temporary or alternative conclusions, there would have been scope for a discussion of serious alternative arguments which are presently precluded by the style of answer; and - the issues presented do not have a varying emphasis. A point-form style such as this simply does not admit of a shift in emphasis whilst it is important that certain legal issues need more elaboration, discussion, explanation or emphasis than others. Be aware of these problems and guard against falling into any of the traps she has listed. (iv) Try to keep your discussion of an argument or issue in one place In theory, if you have fully thought an issue through, you should never find yourself in the embarrassing position of explaining that "three pages ago I outlined the argument of the plaintiff and I now realise that the defendant could respond to that argument by pointing out that .... " Unfortunately, in an exam setting you will not have the luxury of thinking through every issue to its logical conclusion before you start to write your answer. Still, it is the goal to which you should strive. If another point comes to mind later, you should have room to go back and incorporate it at the appropriate place in the discussion. If that is not possible, insert the point at the next best place. While this

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Chapter 5 - Some Basic Rules

Fully developing the arguments before presenting the conclusions to which they lead will help you avoid position reversals. These usually appear in a form somewhat like this: "The more I write on this issue the more I realise the opposite conclusion to the one I first adopted may be better". In the long run, a student falling into this trap may catch all the points and counter-points. This student will not receive the same marks as the student whose conclusion is based on a comprehensive discussion of the various arguments. The latter student will have demonstrated an ability to understand and apply the precedents and facts to develop a legal argument. That skill cannot be displayed when the discussion is disjointed and physically separated. ~

(vi) Make the examiner aware of the issues that you have recognised A number of different approaches have been successfully utilised by students concerned that the examiner recognise the different issues they have identified in the exam problem. One common technique is to rely on headings and subheadings to separate the discussion of different issues and to help focus argumentation on each point. Students who adopt this organising tool usually take care to place each new heading on a separate page and leave adequate space for further

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Mastering Law Studies and Law Exam Techniques

points they recall or discover later or, if they complete the rest of the exam in time, for further discussion on the basic arguments discussed in the first attempt at an answer. Another frequently used organisational method you may consider is to commence the answer with a short plan of attack in which you briefly identify the issues and mention the arguments concerning those issues that you intend to discuss in the following pages. The opening outline should not be comprehensive but should set out the different tests and doctrines you will consider and note the point at which you will discuss different facts from the problem. Establishing a framework for subsequent discussion at the beginning of an answer not only helps the examiner recognise the issues spotted and arguments you have devised, but will help you focus your comments, resulting in a tighter, more effective answer. Headings can be used not only to help organise your answer, but also to set out the issues efficiently, saving time and words. Richard Fox, in his exam advice to Monash students, pointed out that headings can also help present the answer in a logical manner. They may, as he suggests, take the form of succinct questions setting out the issue to be resolved; his examples illustrate the effective use of headings: Is A liable for necessaries?; Are the books "necessaries"?

3. Allocate your time to maximise marks Marking schemes and marking allocations vary from subject to subject and lecturer to lecturer. While it is impossible to know beforehand the breakdown of marks on the examiner's marking guide, it is a safe bet that most marks are allocated for finding issues and articulating the basic arguments that should be raised by either side when resolving those issues. Finding the issues and recognising the essentials of the applicable arguments almost certainly guarantees you a pass. Further marks are available for refinements of the fundamental arguments and for recognising and discussing the secondary issues that emerge following your presentation of possible resolutions of the primary issues. With adequate study and exam preparation, you should be able to find the first 50% of available marks on every exam question. Obtaining the next 50% is much harder and the difficulty increases the higher you move from a bare pass. Given an infinite amount oftime in which to complete the exam, most students could better their marks. But time

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in law exams is limited to ensure higher marks are awarded to those students who have mastered the ability to recognise legal issues and formulate arguments while facing significant time pressures. Whether lawyers win or lose in court depends on their ability to respond instantly to witnesses' evidence and incorporate supportive facts into their legal arguments while minimising the impact on the judge or jury of facts that detract from their arguments. The information required in law exams is different but the skill is similar. The first rule to remember, then, is allocate your time between questions efficiently. If an exam has three equal value questions and you do excellently on two but run out of time before commencing the third, the most sympathetic examiner can still only award you a bare pass. If you plan your answer and prepare an outline before commencing your answer, you will be able to cover all the important issues and basic arguments for every question in sufficient time. This means that at the outset of an exam you must plan the maximum time you can spend on each question and then stick to your plan. When the time set aside for one question expires, move on to the next problem. If you 're lucky you will be able to return later to complete the answer; if not you will probably have picked up more marks by starting each question than you would have by finishing one and missing others completely. As important as allocating time between problems is the art of allocating time within questions. If a question is worth 20 marks, it is obvious the examiner expects a quality answer to discuss many issues. While the examiner may not have allocated a specific number of marks to each issue, there will be a maximum the examiner is willing to award for any one issue. If the examiner expects you to spot at least half a dozen issues in the problem and you catch only one, albeit you do so with a brilliant discussion of that issue, collecting the maximum marks available for the point will not leave you with a pass mark for the question. Many marks are available for simply recognising issues and showing you know what elements will be taken into account in the resolution of those issues. If you allocate your time within questions properly, you should not walk out of an exam room with a list of points that you knew but had no time to commit to paper.

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4. Follow through with all levels of argumentation In many exam problems, relevant issues may be argued on a number of levels. Particular care should be taken to ascertain whether the facts of the case give rise to alternative arguments and, if so, to explore these alternatives fully in the answer. One way of accomplishing this is to imagine how a barrister would structure an argument ifthe exam problem were argued in a court. For example, in a torts situation, the initial defence possibly supported by the facts of the case may be that the evidence does not disclose for certain that the defendant actually did the act the defendant is alleged to have committed. Similarly, the facts may make it unclear whether the disputed act was definitely responsible for the plaintiff's damages, even if it could be established the defendant committed the act. They may also give rise to some doubt about the plaintiff's injuries and their actual seriousness. If it appeared probable that the alleged acts and damages could be established by the evidence, the question of legal liability can still be argued on a number of levels. It may be possible to argue that in the facts of the case stated in the problem, the defendant owed the plaintiff no duty of care, or that the standard required of the defendant had been met. Alternatively, the facts may give rise to a claim that the plaintiff also displayed some degree of negligence. Furthermore, a number of common law defences may be relevant. And finally, the facts of the case may make it possible to raise a statutory defence (for example, workers' compensation, etc). Within each level of issue raised by the parties, there will be numerous opportunities for further legal argumentation on the basis of case law precedents. Each aspect should be fully explored.

Chapter 5 - Some Basic Rules

the relevant proposition in law and show how it prima facie applies to the situation. Remember, there are few marks for identifying the legal proposition and failing to show how it could apply to the facts at hand. Ideally, you should follow up the prima facie answer with the counterargument - the special facts in your case that might enable a party to distinguish the apparent rule or mitigate its application. Professor Philip Clarke once advised his Deakin University law students that a propositional style involves three elements: • stating a proposition of law, • giving authority for that proposition, • applying the proposition to the facts. Professor Clarke noted that these elements may be dealt with in any order. He illustrates with three examples: I. Bill decided to accept Helen's offer but omitted to tell her of his decision. According to Felthouse v Bindley, an acceptance of an offer in situations like this will not be effective to give rise to a binding agreement unless it is communicated to the offeror. As a result, no agreement was concluded between Bill and Helen.

2. According to Felthouse v Bindley, an acceptance of an offer will not be effective to give rise to a binding agreement unless it is communicated to the offeror. Applied here, this means that no agreement was concluded between Bill and Helen because, although Bill decided to accept Helen's offer, he omitted to tell her of his decision. 3. There was no agreement between Bill and Helen because, although Bill decided to accept Helen's offer, he omitted to tell her of his decision. This conclusion follows from Felthouse v Bindley, which established that an acceptance of an offer will not be effective to give rise to a binding agr.eement unless it is communicated to the offeror.

Finally, the resolution of some issues will raise supplementary problems that cannot be resolved in an exam context, but which should be noted. For example, an introduction to an issue can note (but not dwell on) who bears the burden of proof with respect to the issue, what is the burden in this case, what sort of evidence is needed to establish a point, and whether this issue is one to be decided by judge or jury.

Whichever approach you adopt, the next step is to see whether there is something in the facts of your case that can be used to distinguish Felthouse v Bindley so it will not apply in this case.

5. Answer in propositional style

6. Use authorities correctly

In a law exam you are required to identify issues and explain how they will be resolved as a matter of law. This is a three-step process: after identifying the facts that give rise to an issue, you must identify

In many subjects, the primary source of authority for legal propositions will be judicial precedents. Be careful to use authorities correctly. If there are lower court and higher court decisions relevant to your

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Mastering Law Studies and Law Exam Techniques

problem, note which will be most persuasive or which are binding. If apparently equal authorities conflict, or cannot be directly applied to the facts, explain the choices open to a court. If an authority appears applicable but you believe a court could adopt a contrary position, explain how this might occur. For example, the apparent authority might be old and a court might be persuaded to follow more recent highly persuasive, but not binding, judgments. Show not only all the reasons why the apparently binding authority applies to your case, but also all the reasons your case might fall outside the legal proposition established by a case.

Some Warnings 1. Do not repeat the question "Jn this question I have been asked whether ... " Repeating the question is a common technique often used by students to gain a breathing moment as they begin an answer and to help organise their thoughts. There are no marks to be found in repeating the question. It can be a harmful practice. It often alerts the person marking the paper to an answer that is using filler instead of substance. If you have spent time productively organising your answer and identifying issues, you should be able to start immediately with an introduction to the issues raised by the problem and the manner in which you intend to organise your response to them.

2. Do not repeat the section "The first issue in this question is whether the taxpayer can deduct the expense occurred. The relevant section of the Income Tax Assessment Act 1997, s 8-1 states ... " Identifying the relevant section of an appropriate Act and citing its contents before explaining its application to the problem at hand is a common examination error in courses in which statute law is important. There are no marks for repeating the section. The examiner knows which provisions have been taught. Marks are given for explaining the application of a provision and identifying other provisions that may affect the resolution of the problem at hand. Repeating the words of provisions that are well known to the examiner is costly - it uses a lot of precious time that should be spent on information-generating marks.

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3. Do not catalogue a case "These facts are virtually indistinguishable from those considered by the High Court in Ronpibon Tin v Federal Commissioner of Taxation (1949) 78 CLR 47; 8 ATD 431; 4 A/TR 236." It is astonishing how many students who run out of time and do not finish their exams provide comprehensive cataloguing of the cases cited in the questions they do complete. Full citation of decisions may fill out space and help to pass the time, but it earns no more marks than an identifiable one-word reference to a case would earn. Marks are only awarded for using the cases properly. In those very rare cases in which some confusion might arise from an incomplete citation, add only as much information as is necessary to clarify your reference. The Ronpibon case will suffice in the above example. If there is a chance of confusion as, for example, with Scott v Federal Commissioner of Taxation and Scott v Commissioner of Taxation (New South Wales), you may need to use both parties' names to identify your reference. Scot~ v FC:T and Scott v C of T (NSW) will suffice. Alternatively, you can 1dent1fy the case to which you're referring by including the year: Scott (1935).

4. Do not report a case "The facts in this question are similar to those found in Horten v Long and its ratio will be ofrelevance to this problem. Jn Horten v Long the defendant had obtained . . ." A very limited number of marks are given for identifying cases that may be relevant to the resolution of the exam question. Many more marks are given for the application of relevant decisions to the facts at hand. There are no marks to be found in summarising cases for the benefit of the examiner. The examiner knows the cases better than you; the examiner taught them to you in the first J1lace. Describing a case in detail is not only a wasted effort; it is counterproductive. It uses valuable time that should be used in answering the problem. In an examination cases should be cited to support any arguments you make and counter-arguments you offer. Similarly, you should explain how any case could be distinguished by one side or the other or otherwise dealt with. You should not summarise the case again. Your function in a·n examination is to explain why the exam problem is analogous to that confronted in a case (in which event a

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similar result should be reached) or distinguishable (in which event another result may be more appropriate).

Chapter 5 - Some Basic Rules

The converse mistake to describing a case in detail instead of using it to answer the question is to cite it for a proposition or rule of law without explaining the relevance of either the case or legal proposition to the facts in the exam problem. The error usually appears on exam papers by students who have relied on textbooks rather than properly synthesised review notes. But in an examination there are no marks for knowing legal propositions, only for knowing how to use them. The mistake is best illustrated with an example:

another area of law and should not be followed in the area covered in the problem. The second student received extra marks for demonstrating that how the apparently applicable judgment would be used in argument. The first student realised that was the case to be dealt with in the fact situation but lost marks for citing it without demonstrating an understanding of the decision or an appreciation of the importance of the issue it raised. Even where a case cannot be used to explore alternative legal doctrines, it should be shown how the case can be applied in terms of the legal proposition for which it appears to stand. For example, compare the following answers:

answer (a): Of course, because this assignor received consideration, the assignment of future income would be effective. (Norman)

answer (a): The owner will be liable for damages in this situation -see Smith.

answer (b): It remains unclear whether the purported assignment of future income would be effective for property law purposes. There is a dictum by the Chief Justice in Norman that suggests an assignment of future income may be effective for transferring the present property right, if the assignor receives consideration. This suggestion is inconsistent with English authorities. Furthermore, even if we were to assume the assignment would be effective for property law purposes, it may not be recognised for tax purposes.

answer (b): Prima facie, this situation would appear to be governed by the Smith case, which involved a similar fact situation. At the same time, however, Smith can be distinguished once we consider . .. In the end, the second student might well reach the same conclusion as the first one. But the second student will gain far more marks for the attempt because this student showed an understanding of the relative merit of the apparently applicable argument.

5. Do not cite cases without applying them

The student who prepared the first example got the right case. Norman clearly had something to do with the resolution of the problem. But the student has not indicated why the case is relevant. An examiner reading that answer could only guess as to the student's ability to apply or distinguish the Norman case. By way of contrast, the second student demonstrated the argument and counter-argument that would come out of the case applicable to the facts in the problem. Even without knowing the area oflaw, by reading that answer one could see that the assignor of income in the exam problem would rely on a case called Norman to support the validity of the assignment. On the other hand, the party opposing the validity of that assignment would argue first that the applicable case did not stand for the proposition attributed to it (that is, the party opposing the validity of the assignment would suggest the alleged proposition was only obiter dicta and not binding) and, if this argument was not successful, would rely on an alternative argument that the apparently applicable precedent actually applied to

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6. Do not use cases without identifYing the principles behind them It is not difficult to use cases as precedents by using the superficial likeness between the cases and the facts at hand. However, to maximise marks, cases should be presented in terms of principles they might stand for. No two situations are identical and the other side can always find some way of distinguishing cases used to support your argument. If you draw principles from the cases, you send a clear signal to the examiner that you have thought of how best to apply the case. Consider, for example, the following two possible answers and see how the first one has applied the case that looks closest to the facts in the exam, while the second drew a principle from the case and then applied the case and the principle:

answer (a): The courts have drawn a distinction between payments upon dismissal from employment that are income in

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Mastering Law Studies and Law Exam Techniques

nature, and payments that are capital in nature. In Bennett, the taxpayer received a lump sum payment that was held to be capital. In Phillips, the taxpayer received a series of payments over the period he would have been employed. These were held to be income payments. The taxpayer in this exam problem has received a series of payments so the Phillips case will apply and they will be treated as income. answer (b): The courts have drawn a distinction between payments upon dismissal from employment that are income in nature, and payments that are capital in nature. In Bennett, the taxpayer received a lump sum payment that was held to be capital. In Phillips, the taxpayer received a series of payments over the period he would have been employed. These were held to be income payments. The fact that payments were made regularly when ordinary salary would have been paid if employment had not terminated suggested the payments were substitution for the income payments. The principle that derives from this case is that amounts paid in substitute for what clearly would have been income payments will in turn be characterised as income amounts. The payments in this exam problem were made in satisfaction of the taxpayer's claim for the lost income and on the basis of the principle in Phillips, they, too, will be treated as income. 7. Do not use superfluous introductions

"Jn this question the first issue we encounter is the possible negligence ofJohn ... "

Time is at a premium - it is the most precious commodity you have in a law exam . Start on the answer, not the introduction to it. Thus, instead of the above example, try something like: "l. Is John negligent? ... "

8 . Do not review entire areas of law The exam fault of reviewing entire areas of law is a product of improperly prepared review notes. If your review notes are a comprehensive summary of the law rather than an outline of principles, issues and arguments, you run a high risk of committing this error. Law examination problems may be confusing and oblique. Most students are able to recognise the basic issues involved in a problem, however.

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Once they have identified the relevant area of law, they are expected to discuss the various arguments and their application to the specific case in the exam problem. Far too often, however, students provide a discourse on the area of Law they know is relevant to the problem. The examiner knows the law relevant to the exam problem. That is why this person is asked to teach the course. Marks are given for finding the issues in the case, analysing them in the light of precedent and theory, and offering a tentative conclusion as to the likely resolution of the issues or the arguments that would be raised by parties to a dispute. No marks are available for copying notes on an area of the law, however excellent the summary may be.

9. Do not joke It is quite common for an examiner to play little games when formulating exam questions by incorporating the names of colleagues, politicians, etc, into the problem. The examiner is allowed to do it - students run a great risk when they try to respond in kind. There are no marks for humour in a law exam. Trying to joke in the hope that the examiner will think your answer clever is a dangerous tactic - what may appear to you in the intense pressure of the exam room to be a cute pun may not seem so to the examiner a week later after having read through 30 exams with similar attempts. Stick to the issues and make your paper stand out on the basis of its skilful argumentation, not its attempts at humour.

10. Do not forget the dialectic nature of law Regardless of how the problem instructions are stated, a good answer must reflect the dialectic nature of law and canvass all the arguments and counter-arguments raised by a problem. The essence of the advice not to forget the dialectical nature oflaw is to avoid-adopting an overtly partisan stance. "Advise Sally" means just that- it does not mean set out every argument in her favour or explain why she is going to win or lose a case. It means advise her on all the Legal issues she will be able to raise in her favour and all those to which she will have to respond.

11. Do not avoid a conclusion Because of the complexity of legal argumentation, many students attempt to sit on the fence in a law exam answer: "On the one hand . . . while on the other hand ... ." It is possible to compose a passable

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answer in this style if you catch most of the issues and arguments but it is unlikely that you will do terribly well with this technique. It is not enough to recognise and articulate the legal arguments relevant to a case. The second element of legal reasoning is to recognise the relative strengths and weaknesses of the opposing arguments and suggest a likely outcome of a conflict. You are not evaluated on the basis of a "right" answer, but rather, whatever your conclusion, you will receive marks for showing you know how to make decisions and suggest resolutions of a dispute through a reasoned evaluation of the merits of the arguments you discuss.

12. Do not rely on legalisms; write clearly and concisely

In theory, marks in law examinations are awarded for content and not style. In practice, however, it is impossible to develop cogent arguments without writing in a clear and lucid manner. Legal argument should be as clear as any other writing. You cannot write in circles or rely on legalisms in the hope that the examiner will assume you know what you are talking about even if the examiner cannot follow the argument completely. If you understand the material, you should be able to write it out in clear, concise English in the exam. If you have not properly synthesised your class notes and precis into effective review notes, you will simply end up with a rambling, directionless discourse. It is impossible to develop an argument under these circumstances. 13. Do not cite secondary sources As a general rule you should not cite casebooks, texts (other than a small number of classics by authors such as Blackstone) or the instructor. There are rare occasions on which a point from a leading text might be permissible but they are so rare it is best not to take the chance. Citing a text is of no help in the development of a legal argument. Long before the exam a text might have been of use to help you understand one author's interpretation of the legal rule used in a particular case but it cannot help you discuss issues and arguments in the context of your exam problem. The worst example of indiscriminate citation from a secondary source that I have seen appeared in a student's answer to a tax problem I set a few years ago. The student quoted an entire page from a wellknown guide. Unfortunately for the student, the wrong passage had

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been copied so I couldn't even consider giving the student marks for using the index properly. But even if the material had been correctly cited, reproducing the passage would have been a useless exercise. Marks are given for the application of legal principles and precedents, not the recitation of someone else's summary of the law. Draft in short, but complete, sentences. And slow down enough to keep the handwriting neat.

14. Do not ignore your spelling and grammar Many faculties take grammar, usage and spelling into consideration in the marking process. Others do not do so explicitly, but inevitably it affects your results. The examiner will notice any faults in your answer. They will annoy the examiner and the examiner may even tick them with a pencil out of habit. Even if the examiner is not taking them into account, they will interrupt the examiner's reading and break his or her train of thought, making it harder for the examiner to follow the flow of your arguments. Your exam book is a form oflegal document and should incorporate proper written English, not common oral jargon. Use full words in preference to contractions. Learn to spell common but tricky legal words before the exam. Avoid splitting infinitives and switching tenses. Keep plural subjects with plural verbs and single subjects with single conjugations. Do not interchange "it's" (meaning it is) for its (possessive of it). Do not use an apostrophe in a plural noun unless it is to show possession : he appeared in one court, she appeared in two courts; they appeared in three courts' rolls. Failure to pay attention to presentation will detract from the quality of your arguments, however well thought out they may be. This is based on contributors' work, not students' work!

15. Do not look/or the definitive answer By this point you should be quite tired of reading that there are no definitive answers in law or in law examinations. Nevertheless, it will be repeated here one last time as a parting word on effective law examination writing. If there were a definitive answer to every legal problem, there would be no need for lawyers. If you come up with an absolute answer to an exam problem, you have missed something serious. You've probably missed the weaknesses in your arguments and also missed arguments that a legal opponent would exploit when

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disputing your claim - you may have missed a number of points in the exam problem itself which give rise to the counter-arguments or which can be used to weaken or destroy the arguments you have relied upon. The examiner is testing your legal skills and expects you to find all the issues and articulate all the arguments on either side of the issues. This does not mean that you should avoid reaching a conclusion to your answer - almost always a problem will be structured asking you to provide advice or answer a question and this means a probable conclusion is appropriate. While you should not be afraid of arriving at a probable answer, you must ensure that a tentative conclusion is reached only after you have noted every aspect of the fact situation that the other side can use to its advantage and explained how they would be applied to support an opposite conclusion.

Issue Recognition, Rule, Application and Conclusion (IRAC) Putting together all the warnings and tips, you should end up with a technique several American law exam preparation books refer to as "IRAC": issue recognition, rule, application, and conclusion. First, you spot the issues in a problem. Each issue concerns a basic rule of law. Looking at the particular facts in the exam problem, you explain how the rule can be applied to the facts and how it can be distinguished. And finally, you offer a brief conclusion as to the likely result of an attempt to apply the rule.

If you have prepared your review outline properly, you should already know the issues that are likely to be covered. The only trick is finding them in the facts of the problem. And once you have done that, the rule, its application and the conclusion should follow freely. Consider the following paragraph, extracted from a contract law exam: Although the shopping precinct was not zoned for any residential use, the shop owner agreed to lease living space at the back of the shop to her 16 year old employee, who provided a $200 deposit. Before moving in, the employee found another job and another place to live and now seeks your assistance to recover the deposit.

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Now go through the first sentence and underline each of the leading facts: Although the shopping precinct was not zoned for any residential use, the shop owner agreed to lease living space at the back of the shop to her 16 year old employee, who provided a $200 deposit. Before moving in, the employee found another job and another place to live and now seeks your assistance to recover the deposit. Now consider the legal issues raised by that fact:

• agreed to a lease - Is this a contract? Was there offer and acceptance? Was there consideration? • not zoned for any residental use - Is this an "illegal" contract? What effect does illegality have on the validity of a contract? • 16 year old - Is this a minor? What effect does infancy have on the validity of a contract? • living space - Is the contract a contract for "necessities"? If so, what effect will this have on the validity of the contract? • deposit - What approaches may be taken in respect of an invalid contract (void ab initio, voidable, severable, etc) and which of these will result in a return to the position of the parties before the contract was entered into (that is, a return of the deposit)? The answers to these questions will reveal the rules of law which you can apply or distinguish on the facts.

Dealing with Panic Exam problems deal with materials covered in a course. However strange the questions may look upon first readinglo if you've prepared for the exam, you should be able to recognise the general areas at which the questions are directed and using your outline as a guide, start to dismantle the questions to see how the issues that you know must be covered are worked into the problems. If it's not obvious at first where to start a question, simply turn to the other questions and come back to the difficult one after you've built up a base of marks in the other problems. Among other things, by completing the other problems, you'll be able to cross off some of the subjects covered in the course and narrow down the potential field of issues that are likely to be incorporated into the difficult question .

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Sometimes an exam triggers a genuine panic attack. Most often, the panic is a direct consequence of poor or incomplete preparation - the panicked student simply does not know the areas covered in the exam and has no basis for answering the problems. On extremely rare occasions, prepared students suffer a panic attack. On first reading they fail to see the starting point for some or most of the exam problems and panic sets in. Unchecked, initial panic can escalate to freezing terror and mental paralysis, a certain recipe for exam disaster. The problem is, of course, that no review committee will believe a prepared student suffered a panic attack; instead they will conclude that anyone claiming poor or non-performance due to panic was simply not prepared. Given the likelihood of an unsympathetic review, the only acceptable approach to a panic attack is to deal with it immediately, and without assistance. This is not as difficult as it may sound. Only the first step, regaining composure, is truly difficult. The trick is to withdraw mentally from the exam for a moment and calm yourself so you're ready to start again. This may not be easy to accomplish in the exam room, where you are surrounded by fellow students all oblivious to your difficulty and all writing furiously in their exam books, answering the questions that pushed you into panic. If you cannot regain composure in the exam room, ask to be excused and sit outside the exam room for a few minutes, thinking not about the problems inside, but about the general process that you'll follow when re-attacking the exam. First, you'll try to ascertain the broad areas covered in a problem. Then, you'll tum to your review outline in those areas and read the problem again, running down the list of issues in the outline to determine which are relevant to the problem. When you're calm again, return to the exam room or, if you never left it, tum again to the exam problem and follow the approach you've just reviewed. Second time around, some starting points should emerge.

Chapter 6

Multiple-choice and Essay Questions Multiple-choice Question Exams Multiple-choice question exams are rare in law schools. Some law lecturers regard them as the antithesis of what they seek to examine after emphasising time and again that the task is to develop arguments and counter-arguments, how can they use exam problems that require a single correct answer? Notwithstanding the reluctance of some examiners to use this method of evaluation, you may encounter an exam comprised wholly or partially of multiple-choice questions. Higher education funding cutbacks and resulting higher marking loads make this increasingly likely, particularly for mid-semester evaluations. While the premise underlying a multiple-choice exam or true/false exam seems counter-intuitive to the study oflaw, a properly constructed multiple-choice or true/false exam can play a role in measuring legal skills. In an ordinary problem-based exam question you are asked to review a set of facts, identify legal issues, canvass the arguments and counter-arguments regarding the legal issues raised by those facts, and evaluate the likely outcome of the arguments based on current legal doctrines. To do this, you will need to know into what areas of Jaw the issues fall; what doctrines, cases, and statutes are relevant to those areas of law; which statutory provision prevails over which when two or more appear to apply; which case is more relevant to a problem, and so forth. While a multiple-choice or true/false question exam cannot test your ability to apply all this information, it can test whether you possess the information you would need to solve a problem. Often, multiple-choice question exams are open-book exams. This means the answer cannot be a fact that you can quickly look up. With enough time, you probably could look up all the answers to the questions in an open-book exam. But there is not enough time, which

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is why the instructor has allowed an open-book exam. If you know the materials well enough to know where the answer can be found quickly, you know the materials well enough to answer the questions without looking up the answers. At the end of the day, preparation for a multiple-choice question exam is not greatly different from preparation for a problem question exam. Once again, last minute cramming will not work. Rather, continual preparation over the semester is needed - reading the cases; preparing the precis of the cases; synthesising your readings, precis, classroom notes and additional research into study notes; preparing summaries of those notes, and preparing outlines of the summaries. Even the last step is the same as preparing for problem-based exams - work through exams from previous years in a study group. If old multiple-choice exams are not available, use problem-based exams. Answering the problems on those exams will familiarise you with the issues and, equally importantly, familiarise you with the organisation of your notes, so if you have to look up something during the exam, you will know where to find it quickly. In the examination room, read through the problems in the order they appear. If you know the answer, complete the question. If you do not know the answer immediately, skip the problem - the trick is to pick up all the marks you can in the limited time available. Only after you have answered all the problems to which you think you know the answers should you turn to the ones originally skipped over. Read these through carefully to determine exactly the issue with which the question deals. Think back to your outline and try to remember the key points relevant to that issue. Only then should you turn to your notes. Hopefully, by that point you will know exactly what you are looking for and where it is in the notes.

Essay Questions In an earlier edition of this book, Richard Fox described an essay question as a "problem-type question, but not so constrained by the facts". Professor Fox's comment reveals an important facet of essay questions - the basics of answering essay questions are very similar to those of answering problem-type questions. In both cases, you must "spot the issues" and in both cases you must identify two sets of arguments - those supporting a legal conclusion (in the case of a problem-type question) or a proposition (in the case of an essay

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question) and the counter-arguments that must be addressed and deflected in each case. The parallels between answering problem-type questions and essay questions should not be surprising. Law school exams are designed to measure knowledge of the law and, more importantly, the application of that knowledge to provide sound legal advice. This means spotting issues and canvassing the arguments and counter-arguments raised by those issues. The presentation of arguments is different in an essay question and a problem-type question, but the underlying skill - clearly articulating a position in a persuasive fashion, recognising the obstacles that must be overcome, and addressing those counter-points in a manner that sustains or furthers your preferred argument - is the same. The key difference between problem-type questions and essay questions is that with the latter you will be invited to offer critical analysis - to borrow the words of my col league Nick Gaskell, you are invited to go beyond a mere description of what the law "is" to what it "ought to be". The essay question offers an opportunity for policy analysis of the issues raised in an area oflaw and the development ofa persuasive case for the law to follow one path in preference to another. To this end, an essay question requires a different sort of conclusion from a problem-type question. Depending on the fact situation, the conclusion to a problem-type question can be equivocal: here are the arguments and counter-arguments and on the basis of authority this set is likely to prevail but there is a chance that if presented in the manner proposed the other arguments might win at the end of the day. By way of contrast, the conclusion to an essay problem can be unambiguous: "I have reviewed the arguments for and against a position and shown why a particular approach is preferable, whether or not it would be adopted." As is the case with problem-type questions, advice on answering essay questions can be boiled down to a number of elementary things to do. I . IdentifY the question being asked

Almost invariably, an essay question expects you to take and defend a position. Because the question seeks discussion of a proposition, the answer resembles, in many ways, a mini-thesis. You will not be asked to "describe the law of libel" in your state, but you may be asked whether "the law of libel is tilted too much in favour of plaintiffs and inhibits

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freedom of the press". Just as there are no marks for regurgitating your notes or texts in a problem-type exam, no points are given in an essay problem for a comprehensive survey of the law. Points are only relevant if they further develop your thesis. You must show how favou~able points can be used to support the proposition you adopt and explam why apparently contrary arguments do not undermine it. The question does not ask about other legal issues and there are no marks for raising and discussing other points. The importance of keeping the question as the focus of your answer cannot be stressed too strongly. The instructor has a marking guide based on the question asked and will have a good idea of all the points that can be used to support a proposition and all those that can be used ~o defe~t it: Marks are given for the development of each point and its apphcatJon. Failure to focus continually on the question raises the risk of answering your own question, not the one that was asked in the exam. question calls for you to apply points selectively from your notes; 1fyou catch the general drift of the question only, you will cover ground irrele_vant to the question. Of the dozens of points you make, only a few will be relevant to the question asked and even then marks will only be available if the points are applied in the develop~ent of a thesis.

!he

Identification of the question being asked requires a fine dissection of the question to determine all of its elements. Every word in the question has a purpose. The question did not say "recite the law of lib~!" . It asked if the law is tilted in favour of one group or the other. This means that to start with you have to identify the competing groups - plaintiffs and the free press. But these merely represent two potential parties to litigation - the question implies there are underlying interests at stake here. So we might look at each party and try to identify the interests represented by each. The reference to a plaintiff might mean the interest of protecting individual reputation. ~he freedor:z of the press could mean any number of rights the nghts of pnvate media owners to increase circulation, the right of the gener~l p~blic to know personal details of individuals who may impact on their ltves, and so on. Reading the question carefully will help you to map out the issues you are going to raise in your answer and avoid recitation of irrelevant information.

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Chapter 6 - Multiple-choice and Essay Questions

2. Decide upon your thesis Essay questions can be phrased in a number of ways. Almost invariably, however, they require you to argue for or against some proposition. You may decide to take an aye or nay position with respect to the proposition, but once you decide which position you will take, the task is to develop the thesis to support that position, not to catalogue the law in the general area covered by the question. Before committing any point to paper, you should stop and ask yourself if it is relevant to the thesis and how it is relevant. Consider the example raised earlier and assume for the moment that your notes group defences to libel into four main types. There are no marks for observing on the basis of your notes that: there are four principal types of defence that may be used in an action for libel but there may potentially be marks if the answer explains that: a review of the four principal defences to an action for libel shows that each of these tilts the balance of free expression versus protection of individual reputation in favour of free expression (or vice-versa, depending on your conclusion). Even then, the marks are not awarded for saying the defences support one proposition or the other, but for taking the next step and showing how they do so. Thinking of how to apply the points you have will help you refine your thesis. This may mean qualifying the initial question. For example, the sample question presented above assumes there are two absolutes: the rights of plaintiffs generally, and the rights of the press. Perhaps based on rationales articulated in the cases, you might conclude that different interests should prevail in different situations. For example, you might argue the interest of the individual should be paramount in the case of a private citizen but the right of the press to keep the public informed about the persons holding public office should prevail where the person is a public figure . If you adopt the view that it would be reasonable for the law to assume that a person who enters public office implicitly gives up some rights to privacy and protection of private reputation, your answer to the essay question might be that in some cases the current balance is appropriate and in others it is not. In this case you may want to suggest new judicial doctrines or statutory measures that might be desirable for the category of cases in which you have concluded the present balance is not appropriate.

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3. Prepare an outline It is impossible to answer an essay question properly without first preparing a comprehensive outline. When you first read the question a rush of points will come to mind and you will be tempted to start the answer right away. But however great the temptation to start may be, it is essential that you stop and draft a plan to the answer before commencing the answer itself.

Marks are given for the points you raise and the effective use ofthose points to further your thesis . While you may be able to think of most of the key points in an off-the-cuff essay answer, it is a virtual certainty that you will not be able to use them effectively unless you first map out the arguments you intend to make, the relationship between the issues, and the structure that will tie them together into a consistent, organised, and cogent thesis. Do not be concerned that the clock is ticking, other people are seriously writing their answers, and you are still drawing arrows on your outline to move points from one heading to another or to add a source for a further point. The marks are given for using the information you present, not for transcribing unorganised points on to the page. Take all the time you need to finish a master plan and only then start writing the answer. You will be amazed how easy completing the answer is and how quickly the process goes - once you have the outline in place, the sentences will flow by themselves.

4. Start with an introduction and finish with a conclusion An essay answer should not be a gripping mystery story, retaining readers' attention with unexpected points and surprise endings. Quite to the contrary, it should set out at the outset what it intends to do and how it intends to do this. Thus, the answer should commence with an introduction that makes it clear what position is being adopted and what issues will be analysed in the investigation of the thesis.

While good introductions may adopt a range of styles, they enjoy a consistency in terms of coverage. Some adopt a confident first person approach: A review of current case law on the law of libel, considered in light of the rationales for protecting individual reputations and those for protecting freedom of the press, suggests the law of libel is not tilted to an unreasonable extent in favour of plaintiffs generally, but it is unreasonably balanced with respect to one class

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of plaintiffs, namely public figures. In the answer that follows, I shall first review the reasons the law seeks to protect individual reputations and secondly review the case for protecting freedom of the press. In the third part of the answer, I analyse current case law to explain how the courts balance competing interests. And finally, the fourth part of the answer considers whether the judicial tests protect the interests of plaintiffs and the press that were noted in the first two parts of the answer. I conclude the judicial tests protect the interests of plaintiffs in a satisfactory manner where the plaintiffs are private citizens, but the law tilts too much in favour of individuals where the plaintiff is a public figure whose actions can reasonably be the subject of intensive press scrutiny. Others prefer the anonymity of the more traditional third person presentation: ... This answer first reviews the reasons the law seeks to protect individual reputations and secondly reviews the case for protecting freedom of the press. The third part of the answer provides an analysis of current case law to ... Whichever approach is used, the introduction should provide an overview map of the answer. After the introduction, the reader should understand clearly what will be argued in the answer and at each place along the route see why points are being made and how they are being used to develop the thesis. The answer should always have a conclusion. Conclusions play a conceptual and pragmatic role in an essay answer. From a conceptual point of view, the conclusion ties together the arguments that have preceded it, rounding offa legal argument. From a pragmatic perspective, conclusions summarise the basis for awarding marks:

...

Six reasons are commonly offered in support of extending professional privilege to accountants. Each of these were examined in light of the rationale for privilege articulated in Australian cases and the policy rationale offered by commentators and the Law Reform Commission. Viewed against this criterion, each reason for extending privilege to accountants was found wanting. However, it was noted that this analysis was premised upon the existence of segregated legal and accounting professions. While the proposition should be rejected under present arrangements, a

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different conclusion might be appropriate if joint accounting and legal partnerships are formed. The examiner, reading between the lines, will realise that the conclusion says: I found six arguments relevant to the proposition. I extracted from the case law and other sources all of the points relevant to the arguments and tested each argument as it would apply to accountants against the points. I conducted the review in a thorough and methodical fashion, applying the arguments in a consistent fashion to support my conclusion. So, please award me full marks for this answer.

5. Provide maps and guideposts throughout the answer Luck of the draw might place your exam paper near the top of the pile to be marked. But it might end up at the bottom of the pile. After hours of marking, papers, issues, and arguments all start to blur together in the eyes of an examiner. Segregated into small components, any answer is weak - unless the arguments and evidence are strung together to develop a thesis, there is no obvious point to their inclusion, and no corresponding basis for awarding marks. It is crucially important, therefore, to provide a clear guide at the outset of where the answer is heading and the route it takes to get there. At every place in the answer, the examiner should be able to see the relevance of the point at hand to a particular issue and how that issue ties into the overall thesis. The examiner should also be able to see why the point is found at that precise spot in the answer and not one paragraph above or two below. The overall map should be supplemented by guideposts throughout the answer to keep everything on track. There are two elements to the map and guideposts. The first is the generous use of headings and, where appropriate, subheadings. The second is the use of exposition under the headings. An important rule to remember is that headings provide a framework for the text, but they are not the text itself. In other words, headings cannot substitute for text. Accordingly, it is not permissible to have a heading followed by a sentence such as "This is important because ... " or "It is relevant because ... ". The text should stand on its own and be comprehensible to a reader who has not read the heading, which acts only as a guidepost to the text. The first sentence under each heading should thus set out the issue

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covered by the heading, explain why it is introduced at that point, and provide a guide to what follows, as in this example: Heading level 1: Evidentiary Exclusions Heading level 2: Solicitor-client Privilege The fourth type of evidentiary exclusion that might be encountered in this type of case is the exclusion of information subject to solicitorclient privilege. The question of solicitor-client privilege might arise at two stages in the proceedings - at the initial discovery stage, or at trial. While the same case law principles apply in both instances, different policy rationales have been offered for the privilege at these two points in the litigation process. It follows that each type of proceeding should be considered separately. Heading level 3: At Discovery Four policy arguments have been advanced for abolition of solicitorclient privilege at discovery proceedings for this type of case. The first argument for abolition of the privilege rests upon the assumption that a true solicitor-client relationship is not established in this type of transaction. There are two aspects to this argument. The first ...

6. Incorporate authority into your thesis effectively In many respects, the process of answering an essay question in an exam is similar to that of completing a research assignment. There is, however, one crucial difference between the two tasks. In the case of a research assignment, you will be expected to find authorities after commencing the assignment. In the case of an exam, there is no expectation or possibility of further research - the only information you will be able to use in the exam answer is information you already have in your notes before entering the exam room. The answer to an essay question should be supported by authority in the same way an answer to a problem-type question would be supported. You are not expected to provide a flow-of-consciousness presentation of your personal thoughts on the question. Rather, you are expected to present in an ordered and logical fashion coherent and viable arguments. These may be based on your reading of cases or statutes or they may have derived from a source referred to in your

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notes - the comments of a judge, a report by a committee, and so forth . Where the nexus between your argument and its source can be established, attribute the source: "A fourth rationale for the privilege is that explained by Smithers J in Bart v Lisa" or "A fifth rationale for abolishing the privilege was suggested in the final report of the Simpson Royal Commission". It is not enough to state an argument and its source, however. The real task in an essay question is to develop and apply the arguments. The concern of Smithers J may have been valid in the case she heard, but if you seek to elevate her point into a general proposition, you must explain why the concern is equally valid in the whole range of situations in which you would like to see the privilege applied. Alternatively, you may seek to deflect a concern : " It is true, as was pointed out by Smithers J in Bart v Lisa, that the privilege may be needed to protect defendants where the case has proceeded directly to trial, but this concern should not apply where the matter has been fully canvassed at interlocutory proceedings before the commencement of the trial." The process, as you can see, is essentially very similar to the development of legal argument in a problem-type question. You are expected to develop an argument by considering all the rele_v~nt points and showing how they may be used to support your propos1t10n and why the arguments supporting a contrary proposition are not persuasive. The skills involved in answering an essay question are simply a variation of the same legal skills tested in a conventional problem-type question. The following chapter contains a sample tort law exam essay question prepared by Ian Malkin and Paula O'Brien. The sample illustrates the construction of a well-designed answer to an essay question. Ian's and Paula's comments following the sample answer show how an examiner might award marks for an answer to an essay question .

Chapter 7

Sample Tort Exam Essay Question Jan Malkin and Paula 0 'Brien

When answering an essay question , one of the most important matters for you to keep in mind is that you must focus on the question and must not stray from what is being asked. This is of primary importance in any essay, whether it is in the context of an examination or a researc~­ based assignment: make sure you answer the question and avoid discussing anything that is not strictly relevant.

In the course of writing an essay, try to ensure that every paragraph relates to the thesis or line of argument which you have developed in response to the question that is being asked. As you are planning and writing your answer, consciously ask yourself, "does this paragraph connect to the topic?" If you sense that it does not, you are probably off-track and should re-think what you have written. Also ask yourself, "does ea~h paragraph flow sensibly from the one that preceded it?" Writing a plan that ensures this is the case will help keep you focus~d on the question, and will also ensure that your answer has thematic ~ unity. When you explore the issues raised by an essay question, consider them critically, using authority to support your discussion . This may include legal doctrine, such as what judges have stated in case law, relevant statutory provisions, as well as the views of commentators, where appropriate. You also should canvass and reflect upon any views that are oppositional to the thesis you wish to pursue, to demonstrate the considered nature of your line of argument. The kinds of criteria which essay-writers should keep in mind include the following (which are not intended to be of equal weight):

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Mastering Law Studies and Law Exam Techniques

• Answering the question: the answer should develop a thesis or line of argument in response to the question. • Thought and content: accuracy of content; quality of reasoning about the thesis or line of argument; originality; insight. • Presenting all sides of the argument: if there are counterarguments or rebuttals to the arguments you raise, these should be addressed. • Reform: some discussion of the future, including reform possibilities, is often of value in essays. Carefully consider the question to determine what weight (if any) you think should be attached to reform options. • Structure and signposting: logical argument; linked ideas; use of meaningful headings. • Use of authority: correct reference to and use of authorities; appropriate weighting of the authority; absence of plagiarism. The kinds of authorities you should use will depend on the instructions and nature of the subject. • Expression: clear language; effective style; accurate spelling, grammar and syntax.

Sample Tort Law Reflective Essay Question Examination Context

in an

The essay question that follows asks for a critical evaluation of issues arising in three cases. All of the cases that are listed in the question raise important issues about tort law's objectives, which lend themselves to a critical analysis. In this particular subject, issues and themes such as tort law's compensatory role and usefulness as a deterrent, as well as the role policy can play in deciding cases and making legislation, were emphasised throughout the semester. The question below reflects this emphasis in the subject.

The question: Select three of the following ten cases: • AgarvHyde • Graham Barclay Oysters Pty Ltd v Ryan • Hollis v Vabu

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• Hunter and New England Local Health District v McKenna • • • • •

Kavanagh v Akhtar King v Phi/cox Lawns v Woods Roads and Traffic Authority of NSW v Dederer Thompson v Johnson and Johnson Pty Ltd

• Wallace v Kam Use the three cases to critically evaluate the tort of negligence, in relation to the aims or purposes of tort law. You may refer to the following in your evaluation: • relevant statutory changes or additions to the common law (if any); • additional, relevant case law (if any); and • the views of commentators. In your essay, you can assume that the reader is familiar with the cases. [Writing time: 50 minutes. Reading and planning time: I 0 minutes.]

Example of an Above Average Essay Answer Introduction - primary objectives

In examining the tort of negligence, the cases of Hollis v Vabu ("Hollis"), Lawns v Woods ("Lawns") and Hunter and New England Local Health District v McKenna ("Hunter"), will be used to illustrate some of the central tensions that underlie the pursuit of the aims of the tort of negligence (the tort at issue in these cases). It is posited that the aims of the tort of negligence can be roughly divided into (i) regulatory objectives (such as punishment, deterrence and standard-setting) and (ii) restorative objectives (such as providing compensation), all of . which ultimately "rest on value judgements about how the benefits and burdens of social life (including legal rights and obligations) should be distributed" (Cane 2003). Hollis, Lawns and Hunter demonstrate the varying application of these value judgments by the courts. It will be argued here that the seemingly arbitrary lines drawn between "culpable" and "nonculpable" defendants, as well as "deserving" and "undeserving" claimants, are sometimes the result of the courts pursuing one

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objective at the expense of the other in a particular case. Some cases also suggest that neither objective can be adequately pursued through the existing tort of negligence. The courts are rarely transparent in their reasoning when they make choices between such objectives. Often, a court's choice of an objective is obscured by legal principles that, at first instance, look more coherent than they are. For example, when will the court find the existence of an employment relationship (Hollis)? When will an exceptional duty to act affirmatively be imposed on medical practitioners (Lawns)? When will the state be found to owe a duty to protect a person from the criminal actions of another (Hunter)? And so on ...

Regulatory objectives: punishment and deterrence The tort of negligence can be seen as a tool ofregulation - controlling and shaping the behaviour of persons and corporations (Freiberg). It does this by justly punishing tortfeasors for their wrongs and deterring undesirable behaviour by setting standards for the tortfeasor and like actors to observe in the future (Linden). Examples of where tort law has successfully set new standards to protect the vulnerable include relationships involving manufacturers and consumers (or even bystanders) (Donoghue v Stevenson); doctors and patients in the context of information-provision (Rogers v Whitaker; but not all negligent failures to warn will result in liability: see Wallace v Kam); doctors and non-patients in a professional context (Lawns); and employers and employees (Fairchild).

Ignoring the regulatory objectives to achieve the restorative objective In Hollis, a business was held responsible to a member of the public for a third party's conduct. The liability imposed on the defendant in Hollis was disproportionate punishment when weighed against its moral culpability. The company had neither intended, nor instructed the third party - a courier in its employment - to ride his bicycle negligently, yet the strict liability imposed by the vicarious liability doctrine acted to punish the company for the employee's conduct. Moreover, the punishment of the employment enterprise appears even harsher when considered in light of the fact that the courier the actual tortfeasor - could not be held civilly liable as his identity was never discovered.

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This is an example of the aim to compensate leading to the unfair and morally unjust punishment of a business enterprise. Vicarious liability is particularly notable, in that it amounts to a form of strict liability. It is a policy-dictated loss distribution mechanism created by common law doctrine. The burden should not have been visited solely upon the business enterprise. The liability imposed on the defendant in Hollis does not fulfil Atiyah's argument that "individuals must accept responsibility for their own problems" (1997). Indeed, the "innocent" enterprise could be said to have been unfairly punished for the sake of providing compensation to the similarly "innocent" claimant. This unfairness, whereby the restorative aim is given primacy and individuals or corporations can be punished without having engaged in any wrong-doing, is compounded by the fact the defendant's degree of culpability does not play a determinative role in assigning liability or determining damages. Fault is fault; in assigning blame and assessing the size of the damages award, the degree of unreasonableness is irrelevant. The only exceptions are contexts where the parties' conduct is compared, as in contributory negligence (for example, Wrongs Act 1958 (Vic) s 26 and Pennington v Norris) or in cases involving third party contribution (for example, Chapman v Hearse and Mahony v Kruschich). One might well ask, how can so crude a system, which imposes liability yet ignores degrees of fault, claim to be guiding and shaping the community's behaviour in appropriate and satisfactory ways? There is nothing in the facts of Hollis which suggests that the company should have acted differently in operating its courier business. There seems to be no undesirable conduct to be deterred in the future. If anything, the imposition of liability in circumstances such as those in Hollis may lead to unnecessary and ineffective defensive measures in situations involving governments and corporations (see Hill v Chief Constable of Police) with no benefits and more costs to society.

The impact of insurance - possibly diminishing the punishment and deterrent effect of the law of negligence, but serving the restorative aim? The prevalence of third party liability insurance schemes may undermine the achievement of the regulatory aims of the tort of negligence. Defendants with adequate insurance are most likely largely protected from the financial effects of an adverse damages award. The

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incentive to change harmful, yet profitable, behaviours may also be limited if insurance is available to deal with the resulting damage (see Ford Pinto case). That said, a tortfeasor with insurance is critical to helping an injured individual, who at least has some prospect of being paid any damages award. Articulating a traditional judicial approach, Gleeson CJ in Imbree v McNeilly and McHugh J in Perre v Apand both oppose courts giving consideration to the parties' access to insurance. They maintain that the manner in which a damages award is paid is irrelevant to questions of liability and proof of fault. Stapleton (1995) refers to the presence of insurance as an "imprecise criterion" for establishing principle in common law decisions. By way of contrast, others have suggested that not having regard to the presence of liability insurance is unrealistic, ignoring the realities of the case or circumstances (for example, Kirby J in Imbree and Pyrenees and Luntz, generally). In Hollis, the existence of insurance may have acted in favour of finding the defendant vicariously liable, whether expressly stated or otherwise. The same may also be true with respect to the novel duty finding in Lawns, where an exceptional (and contentious) duty on a doctor to act affirmatively in relation to a non-patient was found by the New South Wales Court of Appeal in a two to one decision. To this extent, it could be said that "the tort of negligence now applies indiscriminately to both the culpable and blameless alike" (Goudkamp 2004), to serve the restorative aim. While the prevalence of insurance schemes may be criticised for interfering with tort's ability to shape the behaviour which would otherwise occur in an overt and transparent way, increased premiums may follow from an adverse finding, with a consequential, tangential, regulatory effect on future conduct. Furthermore, the insurer may require the insured (and similarly placed insured businesses) to change the policies and practices which led to the tortious conduct. Businesses may also initiate such changes to avoid the burden of being involved in litigation (even if it is insurer-funded) and the negative publicity associated with an action in negligence. The Lawns case also demonstrates that, whilst the availability of insurance might have provided a buffer against the "financial punishment" which an award of damages involves, the court did establish a new standard of conduct for medical practitioners.

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Restorative aims - sometimes urifuljilled because of overriding regulatory objectives The pursuit of the regulatory aims of the tort of negligence, at the expense of the restorative aim, has produced distinctions between "deserving" and "undeserving" claimants. The court's development and application of the principles of the law of negligence sometimes means that people with similarly debilitating injuries may have different access to compensation through tort law. By contrast to the approach and outcome in Hollis, the High Court in Hunter seems to have been concerned not to unjustly punish a health authority which was adhering to the state statutory scheme for the treatment of mentally ill persons. The result was the denial of compensation for the mental harm suffered by the family of a man, Mr Rose, who had been killed by his friend and a former patient of the health authority, Mr Pettigrove. Mr Pettigrove had been assessed by the health authority as mentally ill. He was detained at the health authority's premises overnight and then released into the company of Mr Rose to be taken to his home town for further treatment.

In a very short and unequivocal judgment, the High Court found that imposing a common law duty of care on the health authority to the family when making its decision whether to release Mr Pettigrove would be inconsistent with the provisions of the relevant mental health legislation which provided that a person should only be detained if "no other care of a less restrictive kind is appropriate and reasonably available to the person". The High Court was no doubt concerned that finding a duty might lead to the creation of less than desirable standards for the treatment of mentally persons, in particular their prolonged detention. At the same time, the family of Mr Rose was left uncompensated with significant mental injuries. Their harms are not "deserving" of a remedy through the law of negligence but it may be that the new National Disability Insurance Scheme offers assistance. Although the Hunter decision was arguably correct, it is another in a long line of cases where the courts seem to have struggled with their role in regulating social conduct so as to prevent psychiatric harm. The courts seem to have been concerned that imposing liability for causing mental harm would be an unjustified punishment of the tortfeasor in the particular case and would, in tum, open the floodgates for more such claims. The courts have therefore drawn fine legal distinctions between "deserving" and "undeserving" cases of mental harm. For example, in Lawns, despite finding that a duty was owed by the doctor

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to the child for physical injuries, one of two mental harm claims was rejected by the lower court because of the requirement that the claimant's mental harm be caused by "sudden shock" to be considered legally compensable (following Brennan J in Jaensch v Coffey). This was an extraordinary outcome: the child's father was held to be entitled to damages for the nervous shock caused upon hearing of his son's injuries, yet no award was made to the child's mother, who took care of her son on an ongoing basis. Following on from the Ipp Panel report, legislative changes (as Graycar notes, "reform" seems inapt to describe the changes) have further divided the line between claimants with regard to mental harm, by requiring that they be of "normal fortitude" (despite the fact this criterion was abolished in a contentious decision by a High Court majority, in Tame, alongside several of Brennan J's other harsh requirements). The recent decision against a claimant with mental injuries in King v Phi/cox also turned on the statutory requirement that the injured person be "at the scene of the accident when the accident occurred".

Conclusion -

resolve the tensions?

This essay has sought to demonstrate, with reference to Hollis, Lawns and Hunter, the tensions between the aims of the tort of negligence to compensate the vulnerable victim and to regulate behaviour by punishing tortfeasors, and deterring undesirable conduct by setting new standards. The inherent incongruence is driven by the courts' reliance upon value judgments, privileging one or other of these aims in particular cases (or contexts). There is force in the argument that both aims could be achieved, but doing so would require major changes and a diminished role for tort. The full achievement of restorative aims would be best provided by a comprehensive no-fault compensation scheme, such as ifthe National Disability Insurance Scheme were further extended to address all injuries and resulting needs (by way of example, see the scheme enacted in the 1970s in New Zealand). Regulatory aims could be best provided by the imposition of civil penalties and the use of the criminal law. In this regard, Luntz's comments about Froom v Butcher and the way in which significant behavioural change can be effected are convincing: with respect to enhancing the compulsory use of seat-belts to reduce accidents, Luntz argues that this goal was

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best achieved by the criminal law, not by the threat of a contributory negligence finding in a tort claim.

Examiner's Comments on the Above Average Tort Law Essay Answer We have only provided an above average essay answer. It nicely illustrates the features required of a very good essay in an examination context. It demonstrates the qualities discussed in the introduction to this chapter.

Addressing the question/thought and content One of the best features of this student's above average answer is the fact that it never strays from the essence of the question being asked (ie, choose three cases to critically evaluate the tort of negligence, in relation to the aims or purposes of tort law). The student's answer is always "on-track". Further, like all good essays, this answer has a clearly identifiable line of argument or thesis in response to the question. The question requires (1) an evaluation of the tort of negligence (2) in relation to the aims of tort law (3) from the perspective of three selected cases. The thesis developed in response to that question is that there is a "tension" between the "regulatory" and "restorative" aims of the tort of negligence. Difficulties in the development and application of legal principles can result from trying to serve what can be oppositional (or indeed contradictory) aims. The paper does not ignore any part of the question. Once stated, this above average paper does not veer from its central argument. Importantly, the thesis or proposition is identified in the Introduction to the answer and is again discussed in the Conclusion. It also is evident throughout the paper, with each paragraph focusing on one or other of tort's identified aims. The argument about the nature of the competing objectives is developed in a reasoned manner, paragraph by paragraph. Each paragraph presents further sound justification for the line of argument presented in the Introduction. Irrelevant discussion is absent, the structure remains cohesive, and the arguments are tightly written. The cases requiring consideration as part of the question are deftly woven into the discussion, providing a necessary and welcome focus. By the time the paper reaches its conclusion, the cases have been employed as effective springboards, ultimately leading to the argued

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final points - the need for separate legal regimes to meet discrete aims; the need for change. This answer shows that the student had clearly reflected - before entering the exam room - about the essence of the overarching themes relevant to the subject, and how cases, legislative provisions and commentators' critiques could fit those themes. Importantly, the student was able to adapt his or her reflections from outside the exam room to the specifics of the actual question encountered in the exam. A high quality essay in an exam context depends on deep and critical thinking before the exam about the purposes, themes and principles of a particular subject area. It would be highly unusual for a student who has not done such preparation to be able to produce a very good answer "on the spot", like the one seen here.

Presenting all sides of the argument This above average answer effectively discusses all sides of the issues raised by the cases selected for consideration. It shows how a particular aim may be undermined by the other, rather than suggesting that one trumps the other in all circumstances. Considering all sides of an argument adds depth to the student's thesis and in fact makes it more persuasive than would otherwise be the case. It shows a willingness to take a balanced approach to what are hotly contested issues. For example, with respect to the effect of insurance, the student shows a consideration of a range of arguments on point and an impressive ability to weigh the alternatives. The student then goes on to discuss them in light of the cases under consideration. The student notes bow insurance is not meant (in theory) to be acknowledged by judges in deciding negligence claims, even though it may indeed undermine deterrence as an objective. However, the student - quite appropriately - goes on to argue that this may itself be doubted as a genuine problem, when one has regard to the prospect of raised premiums. Most impressively, by going this extra step, the student (briefly) notes that in fact insurance may have a deterrent effect (of sorts). By considering raised premiums as a potential consequence of a successful claim, the student demonstrated a well-rounded, nuanced understanding of a complex issue.

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The need for reform (improvement) This above average answer also considered how the law could be improved, by separating out the two conflicting objectives, so that one no longer undermines the other - as illustrated in previous sections of the essay. In doing so, the student refers to ways in which both the restorative and regulatory aims of tort could be best effected, drawing upon examples to support the suggestions for what could be described as "improvement" - or "reform". References to the National Disability Insurance Scheme (NDIS), Froom and Luntz are extremely valuable, despite their brevity.Although little detail is provided with respect to these reforms (likely due to time constraints), the student at least noted that they were possible and plausible, that they are newsworthy, novel and relevant (NDIS) or have already existed for a lengthy period of time (compulsory seat-belt regulation). In an essay of this nature, it is important to have regard to reform in some way, even briefly, if the time is tight. These references also reflect effective lateral thinking, adding sophistication to the student's answer. This answer effectively reminds the examiner of the underlying issues at stake in the three cases selected for commentary - and how the law could be improved to meet the shortcomings produced by the legal system's treatment of the parties in those cases, with courts seeking to serve one objective at the expense of the other. By zeroing in on the essence of the question at the very conclusion of the paper, the student has completed their journey with the reader. Doing so is a very impressive achievement, especially in the context of an examination setting.

Structure and signposting Structurally, this above average paper is presented in.fl coherent, easy-tofollow manner, demonstrating a solid understanding of the material. The ability to develop a thesis and use authorities in a sophisticated, balanced manner, reflects excellent planning. As we noted above, it is clear that a significant amount of thought and preparation occurred before this student arrived at the examination room. This was not only reflected in the quality of the content in this answer, but in the structure and organisation of the answer. The clarity shown in this above average answer also suggests that the student did not launch into writing their answer without a plan of what they might say. However, it also appears that the student did not

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write a full essay ahead of time, as the answer demonstrates a high level of much appreciated spontaneity, using the three cases from the list often in a sophisticated manner. The student obviously spent time in the exam room, before putting pen to paper, to map out the kinds of points necessary to argue the thesis persuasively, in a manner that made sense structurally. Despite the fact that the paragraphs were divided into themed "segments", they were linked sufficiently. Further, the use of meaningful headings helped the reader follow the development of the argument. Signposting is always welcome, helping the reader follow the line of argument effortlessly.

Chapter 8

Moot Court Julie Cassidy

Use of authority as part of a considered argument This above average answer uses additional case law, beyond the three cases required to respond to the question, wherever possible. Its use helps the student avoid the trap of providing an unsupported or unsubstantiated opinion. Moreover, the student is always accurate in his or her factual and legal claims and offers correct authorities to support these claims. The paper refers to additional decisions as further examples of the success or failure of particular aims (for example, Donoghue v Stevenson; Rogers v Whitaker), and adds a layer of nuance to the underlying argument by citing judges' differing approaches within cases. The contentiousness of a particular issue can be seen by referring to splits in the court (such as the reference to the two-one decision in Lowns) and contrasting the opinions of judges (such as the differences between Gleeson CJ and Kirby J in lmbree with respect to the impact and relevance of third party liability insurance). The paper also effectively cites recent reforms with some critique (National Disability Insurance Scheme). Further, statutory authority is also referred to where relevant (for example, the statutory changes to the law on mental harm that reflect a misunderstanding of the High Court in Tame). Moreover, the range of commentators the student uses in argument is impressive and compelling, citing authors who are directly on point to support the thesis (Cane; Atiyah; Goudkamp). All this adds up to an impressive array of sources, carefully used to back up the student's argument.

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Introduction A moot is a mock proceeding in a court of law. The aim of a moot is to give students experience in preparing and presenting an argument, in a court atmosphere, for a hypothetical client. Moots will sometimes be incorporated into the assessment regime of particular units undertaken by students in the course of their bachelor of law studies. In addition, there are a number of mooting competitions that exist outside the formal curricula of legal studies. Most law student societies conduct an internal mooting competition(s), often broken into two divisions: junior and senior. The Australasian Law Students Society conducts a national mooting competition annually. Other competitions, such as the Philip C Jessup International Law Moot Court competition, are international competitions. The Philip C Jessup International Law Moot Court competition involves regional competitions, the winners of which then go on to compete in the international competition held in the United"States of America. Students may wonder why law students would voluntarily put themselves through the work involved in preparing for a moot that often does not have marks attached to the effort. Mooting can be very rewarding and help you develop important professional skills that you will need if you decide to practise law. It is better to develop these skills in the course of your law studies, rather than finding yourself in court in your first year of practice with no mooting experience.

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Mooting v Debating Contrary to what you may first believe, mooting involves more than a "silver tongue". Many smooth and polished debaters lack the skills necessary to moot successfully. While there are some skills common to both debating and mooting - such as clarity of expression and persuasiveness - there are many differences. The prime difference lies with the mode of delivery. In a debate you have the stage and nobody can interrupt you. You can begin your clever witty spiel without fear of deep or intrusive questions. By contrast, mooters risk continual interruptions from the judges. For this reason mooters must be able to quickly think on their feet and deal with such interruptions. Such skills require practice, a sound knowledge of and understanding of the law, good research techniques and lots of hard work. To this end there are some basic principles pertaining to mooting with which you should become familiar. These are outlined below.

Predicting and Answering Questions From the above it will be apparent that one key aspect of good mooting is the ability to answer questions. Dealing with questions competently requires mooters to develop two skills: • the ability to predict the questions; and • the flexibility to deal with such questions. Predicting questions involves identifying any difficulties the judges may have in understanding or accepting your submissions. By predicting such questions before going to court, you will be able to prepare in advance a persuasive reply to any potential question. Flexibility is essential to effective advocacy. You must be able to reform your submissions in light of suggestions or questions from the judges, perhaps even totally abandoning your original submission in favour of that suggested by the judges. Thus your submissions must be thorough, but flexible.

Chapter B - Moot Court

Every case is well on the way to being won or lost long before parties enter the courtroom. How should you prepare for a moot? First, master the facts. Once you have grasped the facts, take time to think about your case. Identify what remedy you seek and the propositions the judges must accept in order to grant you that remedy. By focusing on these key issues, you will not be inclined to stray to irrelevancies. Once you have decided what you want the judges to accept, you have to find the legal argument to support it. Do not begin by diving into the Digests or specialist web site searches. Start by seeking to justify your position through well accepted, indisputable propositions of law, with which your opponent cannot disagree. If you succeed in doing this, there is no need to dabble in esoteric points of law. You must always bear in mind that your goal is not to engage in clever intellectual debate, but to persuade the judges that your client's case is the stronger one in law. Where you cannot establish your case purely on basic, indisputable propositions of law, further research will be required. Determine the relevant principles of law and find judicial decisions where the facts were similar to your own case. Remember to be disciplined in your research, testing your efforts continually with the question, "what crucial part of my case does this go towards establishing?". Do not - get side-tracked!

Writing the Submission Once you have identified and read the relevant authorities, what do you do then? Write! While the dynamics of mooting do not allow you to follow a script, not until you write a submission will it become your submission.

Preparation

Particularly where the facts are complicated, begin by setting out a chronology of facts. Then focus again on what you want the judges to accept. List what you must establish for the judges to find in your favour. By adopting this list as your basic plan, you should ensure that your submission is orderly and logical.

The keystone to the ability to predict questions and be sufficiently flexible when presenting your submissions is preparation. Only preparation will allow you to be comfortable with your submission and thus be able to answer even the most tricky or penetrating questions.

As to writing the bulk of your submission, there are no hard and fast rules as to how to tackle drafting. Just make sure you use a method with which you feel comfortable. As a suggestion, use a folder that allows turning from page to page with ease. On one side, write your

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submission. On the opposite side, reference authorities supporting that submission. Once you have written your submission, ask a friend to act as devil 's advocate to test the strength of your submission. In the course of such testing you should also ensure that you have authorities for all the propositions upon which your case is based. In this regard it is important to remember that the judges are probably well versed in the law and you cannot just "pull the wool over their eyes" if you do not have authorities for your submission of law. Students have at times tried to trick the judges by making up non-existent cases when challenged for an authority. It does not work! In a moot, the wellprepared boring advocate will always be more successful than an unprepared flashy presenter. Once you have finished your submission, read it! This does not mean that you learn the submission off by heart. This can be very dangerous. A submission recited in parrot fashion will fail to incorporate the flexibility needed to deal with any point the judges may wish to consider out of sequence. Once you are familiar with your submission, you may want to reduce it to point form . This exercise is useful as it will prevent you from reading your submission to the judges. As discussed below, this will promote eye contact with the judges and help in the persuasiveness of your submissions. Again, the summarising may take a number of approaches. I personally like using a single sheet of paper with only the headings printed on it and underneath each heading the key authorities. Some advocates like to cut down their submission by deleting all verbs, conjunctions and adjectives from the sentences, leaving only a list of key words. This method provides the security of having in front of you key words as prompts, while taking away the temptation of reading to the judges. As a back up, have a copy of the full submission handy in case there is a matter you wish to refer to in detail.

Advocates' Duties Before we tum to the actual appearance in the moot and the presentation of your submission, it is important to note that as an advocate you are bound by certain ethical duties owed to the court and to your client. First and foremost, you have a duty to the court to assist that body in resolving the dispute. This duty requires advocates to maintain the

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greatest degree of honesty and integrity in the conduct of their cases. You must never knowingly misrepresent, or fail to disclose, the law or facts pertinent to the case. Every relevant precedent, even those damning to your case, must be brought to the judges' attention. While you may attempt to distinguish such adverse law, or suggest the judges not follow the precedent, the case must not be concealed. Fulfilling this duty will usually strengthen your case. By initiating the discussion of a difficulty and addressing that weakness, you will lessen any impact that "problem" precedent may have on your case. Your duty to your client requires you to place before the court everything that may fairly support your client's case with the object of persuading the court to decide in your client's favour.

Customs and Conventions Versed in both the relevant facts and law, it is time to go to court. Over the centuries, the courts have developed many customs and conventions for the conduct of cases. While the bystander may consider these to be archaic, they serve two purposes. First, legal disputes, and thus the courtroom, can become heated. These courtesies and conventions can help maintain order in the courtroom. Second, they also serve as a means of displaying the advocate's respect for both the court and the law administered therein. At the beginning of the case the judges will indicate that they are ready for appearances. The judge may indicate this by formally asking for appearances or through a simple nod of the head. You then announce your appearance. After you have announced your appearance, sit down and allow opposing counsel to announce their appearance. The announcement of your appearance should start with the phrase: "May it please the Court". This is a recognition that the case is in the court's hands and relief will only be granted if the judges exercise their discretion in support of your submission. Once the parties have announced their appearances, submissions will commence. In a moot, counsel for the plaintiff/appellant will present their submissions first. If there are two mooters representing the plaintiff/appellant, they will present their submissions in tum, before counsel(s) for the defendant/respondent will make their submissions. Always begin your submission by again acknowledging the court's discretion, and stating, "If it pleases the Court ... " or similar words. Then state the nature of the action. Unless required to previously,

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at this point hand up a list of the cases upon which you rely. Next, particularly in a moot, ask the judges whether they would like a summary of the facts. Do not just launch into a lengthy dissertation of such. The judges may be conversant with the facts and become irritated by what they perceive to be a waste of time. The good advocate will make use of a structured introduction. This will tell the judges: • the main issues underlying your submission; • what you will seek to establish in relation to those issues; and • the remedy you seek. If you are appearing with a junior, identify those points you will consider, and those matters your junior will examine. An introduction serves many purposes: • it gives the judges an idea of the direction you are going to adopt; • it provides a structure, ensuring an orderly and logical presentation; and • it also serves to reinforce your arguments (ie when you present a particular submission the judges will relate back to your introduction, recalling how that submission relates to your overall case). In the presentation of your submission there are certain courtesies and modes ofreferencing that should be borne in mind. When referring to a case, you should state the "v" in civil cases as "and", eg "Cox v Brown" is cited as "Cox and Brown". In criminal cases you should state the "v" as "against". "R v Brown" is cited as "The Queen against Brown". Moreover, when referring to a case, you must provide the judges with the full citation. If you have not given copies of the cases to the court, full citation allows the judges' clerk or associate to extract the case from the library for closer reference. Note in this regard that it is common in moots for the judges to indicate in the course of the oral submission that full citations are not required. Once the judges are satisfied that you are aware of the need to provide full citations, they will often be happy for you to skip this formality for the rest of your submission.

Whenever you speak you should be standing. Do not present your submission while sitting. Equally, if the judges ask you a question in the course of another mooter 's submission, you must stand to answer.

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The other mooter should immediately sit. Only one mooter should be standing at any time. Counsel should not speak directly to each other during the moot. If a situation arises where it is necessary to speak to the opposing counsel, you should seek leave of the court to speak directly to him or her. When referring to opposing counsel, courtesy must be shown. Do not point or glare at counsel for the opposing party. Refer to counsel as "my friend" or "my learned friend". Your reference to counsel must never be condescending, or suggest any negative emotion. Remember, it is the parties to the dispute, not counsel, who are in disagreement. Similar courtesies are accorded when referring to particular members of the judiciary. Members of the High Court of Australia, the Federal Court or the state Supreme Courts/Courts of Appeal should be referred to as "Justice". If the Justice is in fact the Chief Justice or President, he or she should be referred to by that title. Members of inferior courts such as County Courts are referred to as "Judge" and in the Magistrate Courts his or her "Honour". You should not use personal titles such as "Sir", "Professor" or "Doctor".

Presentation of Submission When presenting your submission, avoid the use of personalised language, such as "I believe" or "It is my opinion". Bluntly, the judges do not care what you believe. Your opinions. and beliefs h.a~e no weight. Only legal arguments can persuade the judges. Thus 1t is preferable to depersonalise your submissions by using phrases such as "It is submitted" or "It is contended". As an advocate, your task is to persuade the judges that your client's position is preferable. Many advocates maJsively patting the Therapy Dog, Smiley. Somewhat inebriated from her long lunch at Daisy Bay Diner, Kitty was so desperate for a nap in her favourite nook in the library she couldn't think straight. As Kitty tried to get past the dog-patting crowd, Rex moved towards her. Kitty gesticulated wildly, swiping at Rex's tail to get him out of the way. Without Maria there to hold him back, Rex proceeded to bite Kitty's right arm. Kitty had previously told Dolly and the Programs Committee of her objections to Smiley's visits, because of her allergy to and dislike of dogs.

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Kitty was rushed to Daisy Bay Private Hospital, where she was treated by recent medical graduate, Dr Dire, a general practitioner and the only doctor on duty. Kitty was coughing heavily and wheezing, and her arm was bleeding profusely. Dr Dire quickly read Kitty's file, which noted that Kitty had an allergy to peanuts and dogs, especially those with long hair. After carefully stitching Kitty's wound, which left her with an unsightly permanent scar, Dr Dire gave Kitty a shot of QuickEze, a recently marketed type of adrenaline, intended to instantly treat allergies. Virtually all studies published in medical journals stated that QuickEze should only be used to treat food allergies. These studies stated that in several instances, mice with non-food related allergies suffered strokes when given QuickEze. Other medical journals asserted that all mice had responded positively to QuickEze, regardless of the type of allergy being treated. All medical literature emphatically stated that death will result from untreated peanut and untreated animal-related allergies. After being administered with QuickEze, Kitty's allergic reaction was cured. However, Kitty suffered a stroke, which paralysed her right arm and made her extremely despondent. Her long-time partner, Kat, could not cope with what she described as Kitty's 'self-pity'. Kat left Kitty. Kitty became clinically depressed.

Discuss Kitty's direct negligence action against Daisy Bay Law School. In answering this question, you may identify more than one breach, but you are only required to discuss one breach in detail. Do not discuss vicarious liability and the assessment of damages. Assume the Domestic Animals Act 1994 (Vic) does not apply. You may cross-reference your discussion to avoid repetition. [Suggested time: 21/i hours writing plus 30 minutes reading time]

Tort Law: Average Answer To be successful in a claim of negligence, Kitty (K) will need to show that the four elements of the negligence action have been satisfied: the defendant owed the plaintiff a duty of care; the defendant breached that duty of care; the defendant caused the harm; the harm was not too remote. The defendant might raise some defences and Kitty will need to rebut the defences (Luntz textbook). Each of these elements of the tort will be addressed in this answer.

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The law of negligence is found in the cases and under the statute: the Wrongs Act 1958 (WA) in Victoria and somewhat similar statutes elsewhere, throughout Australia. Kitty will need to use a mix of case law and statute law to make her claim in negligence. The WA sometimes codifies the common law (for example, breach) and sometimes changes it (for example, damages). If Kitty is successful in her claim in negligence, she will be awarded damages (compensation) for the bleeding, paralysis and depression, but there are no other remedies available to her in the law of negligence (even though she may want an apology from Daisy Bay Law School (DBLS)). If we were to assess the quantum of damages to be awarded, the assessment would be made on the basis of the restitutio principle, once and for all time. The first matter to be addressed is whether Kitty's action is statute barred. The Limitation of Actions Act 1958 (Vic) (LAA) prescribes the time limits for commencing claims in negligence (as well as other areas of law). There are very complicated provisions in the LAA for dealing with children and sexual assault sufferers, which clearly do not apply to Kitty's case. It is likely that her personal injury is covered by more straightforward sections of the LAA which relate to an adult's personal injuries. Kitty will need to make sure she commences her claim within the period identified in the statute. If not, she can always apply for an extension of time if she can persuade the court she meets the criteria outlined in that section. This is probably not a problem for Kitty on these facts. The first element ofnegligence to be looked at for Kitty in her claim is whether a duty of care was owed to her. In 1932, in Donoghue v Stevenson, Lord Atkin stated that a duty is owed when the defendant's act so closely and directly affects a plaintiff or a class of persons of which the plaintiff is one that they can be said to be neighbours. Lord Atkin 's test was the start of the modem law of negligence which has developed since then in common law countries such as Australia, the UK and Canada. Lord Atkin's test was followed and in a sense reinterpreted by Deane J in the influential High Court case, Jaensch v Coffey, and repeated in a series of HC cases (Heyman; Stevens). It was endorsed by a majority of the HC in Cook and Burnie Port Authority. However, a more recent HC overruled Cook in Jmbree on the lowered standard of care (precedential) point.

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When Deane J left the High Court of Australia, the test for duty started to change from reasonable foreseeability, proximity and policy considerations to the salient features approach (seen in Perre; Graham; Stuart; Miller; Hunter and many other cases, explicitly and implicitly). With the salient features approach, reasonable foreseeability must first be considered. It is then followed by an assessment - or weighing up - of factors such as control, assumption ofresponsibility, knowledge, vulnerability, autonomy, coherence of the law, defensive practices, diversion of resources etc. This is the approach which will need to be used to determine if DBLS owed a duty of care to Kitty. The relationship between DBLS and Kitty does not fall into an established category, such as doctor-patient (Rogers), employeremployee (Paris), manufacturer to consumer (Thompson), or driver to other road user (Pennington). Therefore, the duty question must be examined in a detailed manner. Turning to reasonable foreseeability, Kitty would say that she was a reasonably foreseeable plaintiff (Chapman) . It was reasonably foreseeable that she would be injured by the Law School. Even though she was one of many school attendees, she would say that she was still foreseeable. DBLS may have difficulty knowing how to respond to this issue. It should be noted that Kitty does not need to be specifically foreseeable; she just needs to be a member of a foreseeable class of persons and "neighbour" of DBLS (Donoghue) to fall into that category (Chapman). Furthermore, Kitty would say there is no need to foresee the precise sequence of events (also established in Chapman) . Next, the salient features approach would be used. This case is like a large number of duty cases, so the features from those cases should be considered in the context of her claim. Kitty would contend that the Law School was in control and had assumed responsibility for what went on in the school, including the adjunct programs it ran. Control was a significant consideration in Agar and Graham ("fractured control"), as well as Pyrenees and Stuart (involving suicide). Furthermore, issues involving the control of third parties could arise, if regard is had to the actions of the ALP, who in a sense set the dangerous scenario in motion (see, for example, Madbury and Adeels Palace.) Kitty would further contend that she was vulnerable and the Law School should have been looking out for her because of her

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vulnerability. Vulnerability has frequently arisen as a critical feature in many cases: Crimmins; Pyrenees; Perre. In response, the Law School may argue that Kitty should have known about the risk and steered clear of the Law School entirely whenever there was a chance the therapy dog would be present. She could have looked after herself; in this way, she was not vulnerable in a legal sense. Knowledge is also significant as a salient features in some major HC cases, such as Crimmins and Pyrenees, where it was present and Graham where it was not. It must be considered in the mix with other salient features, as part of a "balancing act" to determine the duty question (Caltex) (see below). There might be some argument about where the line should be drawn in terms of the duty. If the duty is imposed on DBLS, would this be an example of extending liability too far? Would it mean that the Law School owes a duty to all enrolled students as well as members of the public who might be on the premises or nearby? The defendant would contend that finding a duty here would amount to inordinately extending liability (Esanda). Classic additional public policy considerations that are relevant here include diversion ofresources if a duty were held to exist (Cran). There do not seem to be any problems with coherence of the law on these facts. This is not like CAL and Sullivan, where this was a major concern for the High Court (see also Hunter). However, other policy considerations, such as floodgates and fear ofliability might go against Kitty if they were raised (Tame). Other matters that would be addressed include special public policy considerations bearing in mind this is a public body (see the statute - the WA- and the common law and how they overlap in many respects when this context is at issue). Both would apply here as the listed statutory considerations are not in themselves decisive. While it is possible that a duty would be owed to Kitty, it may not be found if there are not enough salient features pointing in the direction of establishing a duty as opposed to those that are pointing in the opposite direction (Caltex; Graham). The next major element requiring consideration is breach of duty of care. If the duty of care is found to exist, has the Law School breached the duty of care? This is a factual question. There are a number of factors that need to be addressed. Although the WA largely codifies the common law with respect to breach, there are a few differences that may be found when one compares the statute and the common law. 133

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The common law's reasonable foreseeability test's threshold level (ff);ong) has been changed by the Act, which added the "not insignificant risk" test (WA). This is based on what the Ipp Panel recommended, because it said that too many cases were being decided solely on the foreseeability criterion, which was criticised as being too low and too easily satisfied. As was noted above, the "not insignificant" test must be used; while it may differ from "not far-fetched or fanciful" (Mason J in Shirt), the difference may "not be very much" (Shaw). While this is an essential test, it is not a sufficient one (Mason J in Shirt; also the WA). The "calculus of negligence" (WA; Mason J in Shirt) has to be considered to determine how a reasonable person would have responded to the foreseeable risk of harm in the circumstances, avoiding hindsight tendencies (Vairy; Dederer). The calculus of negligence, mirrored in the statutes, is about probability, gravity, burden of precautions and social utility (Paris; Romeo, Woods; Dederer; Graham). Probability and gravity get weighed against the burden of precautions and social utility or justifiability (WA). The plaintiff must try to prove that a reasonable defendant would have acted differently when compared to how the defendant acted. This is tested using an "objective standard" (Blyth), to avoid idiosyncrasies and the defendant's personal characteristics. Some commentators are critical of this objective standard, arguing that a subjective test should be employed (Bender's critique). Kitty would try to argue that if care were not taken by DBLS, it was "not far-fetched or fanciful" (Wyong) that a potential injury could arise. But, as was noted above, this has been replaced by the "not insignificant" risk of injury test (WA). Here, this is easily established for all possible breaches as this is a low threshold. Also, the probability of injury occurring (based on information about the risk) is quite high. Further, serious injury was suffered by Kitty. This is clear on the facts. What practicable precautions could the Law School have reasonably taken? The reasonableness of requiring it to take these precautions depends on cost, time, difficulty, inconvenience (Woods; Romeo; Roe; Watt; Dederer; Graham). The defendant should note that it would have been difficult to do things differently. Further, it would have entailed great expense. The Law School might try to raise social utility to justify what it did (Watt; E; Fahy). However, social utility does not seem like a strong

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argument here, as the facts involving the therapy dog are not like those in the cases cited. Hadba and Bujdoso also considered social utility arguments when making breach assessments in those cases. The third element that must be satisfied for Kitty to succeed in being awarded damages in the tort of negligence is the very difficult issue of causation. Based on the Ipp Panel recommendations (see above), there are now two steps that need to be explored to establish the complex issue of causation: factual causation (WA) and scope of liability (also WA; see Wallace). Factual causation is related to the well-known "butfor" test (Adeels Palace; Strong). This test is concerned with whether the defendant's breach is a "necessary condition" of the plaintiff's injury: but-for the defendant's breach, the plaintiff's injury would not have happened. The necessary condition test in the statute largely reflects the common law and echoes the language used by influential commentator Professor Jane Stapleton. An alternative argument for Kitty is that the court can find causation if they deem it appropriate to do so. That is, even if Kitty failed to satisfy the factual causation test, Kitty could try arguing that the court should consider this an "appropriate case" to depart from the requirement that the breach was a "necessary condition" of his harm (WA). However, this is not likely to be convincing here on these facts. Simply showing that the breach "may have" or "could have" made a difference is not enough to trigger this exception (Adeels). Indeed, it seems that this exception is designed to address exceptionally difficult scientific proof cases (Powney), like those involving asbestos (albeit not all asbestos cases). The subsequent "scope of liability" test seems to include issues relevant to new intervening acts and remoteness. This section is meant to prompt the court to ask, "is the harm too remote from the breach?" (Wagon Mound (No 1)) as a question of appropriateness, that is, societal norms or policy (see Wallace). Here, Kitty would say that on a balance of probabilities, if DBLS had not breached its duty of care, then Kitty would not have suffered the harm she suffered. This is based on the facts and the difference there would have been to her physical (and mental) well-being had no breaches occurred. It may be difficult for the Law School to rebut Kitty's arguments at the factual causation stage. The Law School may have a better chance of refuting causation with an argument focused on new intervening acts (NIAs), within the scope ofliability (WA) inquiry and the appropriateness of finding

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liability. At common law, the case law respecting NIAs can essentially be broken down into two types: (a) voluntary human conduct and (b) subsequent negligent conduct. Sometimes, these categories overlap on the facts . ~he defendant may argue that Kitty was a new intervening act, havmg regard to her own conduct to herself; however, this is unlikely to succeed. Another NIA argument may be made with respect to what the ALP did. DBLS may also argue that Dr Dire's conduct amounted to a NIA, severing the causal connection between the Law School and Kitty (Mahony) . This latter argument, a complex one, can yield alternative results. One aspect involves whether the doctor was in breach, a consideration of peer professional opinion and whether a breach, if found, was "inexcusably bad" (Mahony) .

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The requirement that the harm not be too remote must also be explored. Was the injury suffered by Kitty too remote from the breach by the Law School? This hurdle employs the reasonable foreseeability test (Wagon Mound (No 1)). Kitty must show that the reasonable person in the Law School's position would have foreseen that the breach would result in Kitty's harm. The particular way in which the harm occurred does not need to be reasonably foreseeable (Chapman) . It need only be harm of the same general character. Kitty could argue that the court should not define the harm too narrowly (Hughes; Metro/ink) . In this instance, the eggshell skull rule (Smith; Nader) does not seem relevant. However, statutory changes such as s 74 must be addressed as it could be said to conflict with the robust approach to compensating for harm related to mental health, that resulted in the Kavanagh decision. Assuming the remoteness requirement is met by Kitty with respect to all her harm, including her paralysis and especially her depression there is a final hurdle that must be encountered: defences. Ther~ are a few defences open to a defendant to argue in the context of a negligence action. These include volenti non fit injuria (voluntary assumption ofrisk), contributory negligence and exclusion ofliability by notice. These defences also may be relevant to some other torts (or at least versions of them may be relevant). DBLS may attempt to argue about volenti or (complete defences). The court will have to arguments will carry much weight. Valenti has that the plaintiff knew the facts constituting the

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exclusion by notice determine if those three requirements: risk; that she or he

appreciated it (understood it); and that she or he freely and willingly encountered it. At common law, the onus to prove all three elements of this defence was on the defendant. Under the WA, with a view to giving effect to Ipp Panel recommendations (see above) the onus has been shifted onto the plaintiff's shoulders with respect to aspects of the volenti defence, where the risk is an "obvious one". There may be some debate here as to whether or not on these facts this is indeed an "obvious risk". Even if it is not determined to be an obvious risk this volenti defence can nevertheless be raised. The difference simpl; relates to the onus of proof and who bears it (as noted above). If this is not considered to be an obvious risk, then all three criteria which remain must be proven by the defendant. While this is not impossible to prove, it can be difficult and is very much dependent on the evidence the parties are able to adduce. The legal difficulties with this defence point towards using contributory negligence, considered below. Daisy Bay Law School may also raise contributory negligence as a defence against Kitty. This is another aspect of the negligence law which has been changed by statute in different ways at different times. For many years now, apportionment has replaced the all-or-nothing consequences of the common law. Further, newer sections apply, introduced after the Ipp Panel report. First, Kitty must be shown to be negligent. Then, Kitty must be shown to have contributed to her own injuries, using an objective test (Joslyn). The WA also endorses the objective approach though some commentators and judges have criticised it as being unfair. Third, there may be a reduction of the quantum of damages awarded to Kitty (Pennington; WA) . This must be just and equitable. One must therefore ask, "was Kitty negligent to herself?" DBLS may argue that she failed to take appropriate care to herself in her conduct with Rex. Kitty would argue the damages should not be reduced because her conduct did not amount to "'unreasonableness when this is considered objectively. Further, even if it is considered t~ be unreasonable, she would argue it did not causally connect to some of her injuries, which is required by the law (Podrebersek). It is likely that Kitty will be successful in negligence because she will be able to prove duty, breach, causation (and remoteness, part of the causation inquiry). Kitty need not be concerned about the prospect of defences completely thwarting her claim.

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Tort Law: Above Average Answer 1. Introduction -

a difficult case

This may be a difficult case for Kitty to prove, as she is alleging that although Daisy Bay Law School (DBLS) might not be the entity directly responsible for her harm, as an unapprehended ALP member let Rex off his lead, the Law School should nevertheless bear civil responsibility for the harm she suffered. The courts generally regard the imposition ofa duty to control a third party as exceptional (Madbury). Remoteness will also prove problematic for Kitty, at least with respect to her paralysis and depression.

2. Duty -

not a recognised category

(a) Scope and foreseeability Kitty would argue that DBLS owed her a duty to take reasonable care in the operation of its therapy dog program. Because this is not an established duty relationship, like employer and employee, scope of duty is a live issue, as the court must grapple with whether or not DBLS owes a duty with respect to third party criminal conduct (the ALP member) (Madbury, distinguished in Adeels). The fact that the Law School is a public authority will further complicate duty arguments. Kitty must belong to a class of persons whom DBLS could reasonably foresee might suffer harm as a result of its carelessness (Chapman). This is a low threshold "real and not far-fetched" (Sullivan) (or "not unlikely" (Chapman)) risk. Kitty would easily show that if the Law School was negligent in some way with respect to hosting a large untrained dog on its premises, this would result in some kind of harm to a fairly circumscribed class of persons - members of the public, including enrolled students, on the DBLS premises (Chapman). Further, in accordance with Chapman, the School need not have foreseen the precise sequence of events resulting in injury. It would be unwise (and futile) for DBLS to respond that the injury suffered by Kitty specifically was not reasonably foreseeable, as Chapman clearly states that this type of specificity is not required. Indeed, Kitty was known to the Law School to be someone with particular health issues, such as allergies, stemming from contact with dogs.

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(b) Salient features: conduct ofa third party and status as a public authority Foreseeability is an essential but insufficient criterion for establishing a duty (many cases note this, such as Sullivan and Crimmins). Because no established duty relationship exists here, Kitty must look to the salient features of the case, a multi-factorial approach (noted by Gummow J in Perre; the whole HC in Graham, including a reluctant Kirby J; Woolcock, with Kirby J then dissenting in result only; Stuart; Miller). No one feature is determinative; rather, the "totality of the relationship" must be examined (Gumrnow and Hayne JJ in Graham) to decide if "it is reasonable in all the circumstances" to impose a duty (Kirby J in Graham). A catalogue of relevant features should be considered (Allsop P in Caltex). Several features that have emerged as particularly relevant (Davies and Malkin commentary) are of special significance here. One prominent feature is control. DBLS may argue these circumstances are similar to those in Godfrey, where no duty was owed due to the absence of control. In response, Kitty would assert that DBLS had complete control over the circumstances, but exercised it carelessly by not monitoring the safety of Maria's suggested program. Further, this case does not raise Godfrey's problematic geographical proximity issues. It is more akin to Dorset Yacht, as Kitty (and others), especially those with allergies, were exposed to greater risk of harm than the average person, like the nearby property owners in Dorset. DBLS will no doubt maintain that the risk of harm was fragmented, as found by the HC in Graham and Agar (despite the great differences in those cases' contexts). Here, the spectrum of actors spread from the Law School (Dolly and Committee) to Maria to the ALP actor to Rex to Kitty. DBLS would assert that it did not harm Kitty. Rather, the ALP criminal and an unleashed Rex were the true sources of harm, beyond DBLS 's control (like Stuart, where the defendant ditl not have control over the person who committed suicide). Kitty also must stress that her case comes within the slim exception in Madbury (as in Adeels Palace) where a duty can be owed if the criminal conduct is not entirely random. This has some prospect of success here, based on the texts sent by the ALP; she could contend that DBLS had knowledge of the specific risk of harm (Pyrenees; Crimmins; not in Graham). DBLS would note that it did not in fact have knowledge of the specific risk- taking Rex's lead and muzzle,

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maintaining that despite the vitriolic texts, there was no indication that criminal malicious action was imminent.

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Kitty may claim that she was vulnerable, "unable to protect herself' from harm (McHugh Jin Perre), arguing that her safety was dependent on those managing the law school and its wellbeing programs. Like the quarantine-affected plaintiffs in Perre, there was nothing she could do to protect herself from the risk of potential harm arising from a fierce long-haired dog's presence at her place of study. As was the case in Woolcock, this will be difficult to establish, with DBLS arguing that Kitty could have taken a number of steps to protect herself, such as avoiding the library after having been tweeted Rex's whereabouts. DBLS would maintain that Kitty, an autonomous person (like the rugby players in Agar), could decide whether or not to wander through the library at a particular time, placing her in a very different position to the plaintiffs in Perre, who could not move their potato crop to outside the 20 km "bacterial wilt zone". Kitty could convincingly argue that because the statute under which DBLS operated articulated a broad primary concern for a healthy environment, finding a duty would enhance legal coherence (a "public policy" argument) (unlike the results in Sullivan, Stuart and Hunter). Indeed, DBLS 's terribly misguided decision, allowing a fierce animal on the premises, placed the Law School community at risk, in violation of the statute's terms. DBLS may contend that a duty would lead to defensive practices, such that it (and similarly placed institutions) would desist from providing enrichment initiatives as a result of fear of liability (Sullivan). Further, a duty would lead to a deleterious diversion of resources, as it had to juggle a number of significant responsibilities, including the provision of a first-rate education, wellbeing and enhanced career prospects. The fact that DBLS is a public authority is important, because under s 83 of the Wrongs Act 1958 (Vic) (WA) the court must consider the Law School's limited financial resources (s 83(a)) (relevant to deciding what programs to fund) and its broad range of activities and responsibilities (s 83(b)) (providing education, trying to help with careers (mentorship) and enhancing wellbeing). Further, the common law determination that "policy" decisions are immune (Mason J in Heyman; Gleeson CJ in Graham; distinction criticised by Gummow J in Pyrenees) must be employed alongside the non-determinative statutory factors. Kitty would contend that despite the fact that DBLS had a choice as to how to make its determinations, the process here

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went beyond acceptable leeway, as it replaced an accredited program with one that was completely untested. (c) Conclusion on duty Determining the outcome of the duty question is difficult as several salient features favour Kitty, whereas others do not. Ultimately, while it may be difficult establishing a duty, it is possible. Her chances of success would be heightened if the risk arising from the third party control is viewed as more predictable than Madbury, akin to Adeels Palace.

3. Breach -

a balancing act

Assuming a duty were found, Kitty could allege that DBLS: (i) failed to set up a safe regime by having an untrained handler and dog provide the service; (ii) failed to supervise or monitor the new initiative (and, in particular, not enforcing the conditions imposed on Molly regarding Rex). Kitty must prove breach on a balance of probabilities, assessing the Law School's conduct against the reasonable person in the circumstances (Blyth), using an objective test (Vaughan) and applying the WA. Section 48 reflects the common law (Learned Hand J's "calculus", accepted in ffj;ong; Shaw). Addressing breach (i), Kitty must show the risk of harm from the failure to establish a regime with a trained handler and dog was reasonably foreseeable, which is an essential but insufficient criterion (s 48; Shaw). Moreover, these facts satisfy the statutorily elevated (but arguably unnecessary - see Davies and Malkin) "not insignificant" risk test (s 48(l)(b)) (replacing "not far-fetched or fanciful"). Here, a trainer and dog who had not been accredited to provide therapy could expose the public to harm, due to the dog's capacity for violence and its long hair, conducive to triggering allergic rea Opening stock, s 70-35(2); Opening stock> Closing stock, s 70-35(3). To determine the value for the above calculation, Bertha will have a choice of determining the value at the end of the year in three different ways:

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Mastering Law Studies and Law Exam Techniques

-

Cost; Market selling value; Replacement value.

2. Part 2 Bob purchased this property as an investment and the property will be on capital account. Th~ rent from Bertha is Bob's derived income from the property and will be on revenue account as the gain flows from the property: J_'CT v McNeil (High Court, 2007). In addition, rent is generally income: Yanchep Sun City Pty Ltd v C of ST.

Bob owned the shop and it has burned down. As Bob is not insured, he made a loss when this happened. The loss is a capital loss and so Bob cannot set it off against his normal income. The amount of the loss will have to be worked out from what he paid for the land and building. His friend was involved in his purchase so maybe the land was not acquired at arm's length. This brings in 'Modification 1: Market value substitution', s 116-30. If Bob were to sell the property for $350,000 he would have to calculate his capital gain. Selling the land would give rise to the Al CGT event-sees 104-35(4). The capital proceeds will be determined by s 116-20(1 ). In the end Bob sold the land for $180,000. Bob will need to see if he made a capital gain by looking at the cost of the land exch.~din~ the building. To this he will add the costs of bringing the land mto its current condition. Bob will need to consider the money he has spent in relation to the elements of the cost base: Cost of Asset; Incidental costs of Disposal - sections 110-25(3) I 110-55(2) and s 110-35; Ownership costs: ss 110-25(4) /110-55(3); Preservation or improvement in value and moving and installation expenditure : sections 110-25(5) I 110-55(2); Capital expenditure that Bob incurred to establish preserve, defend title to asset: ss 110-25(6) I 110-55(2). '

3.

an employee (even if it is his cousin) is likely to give it the necessary commercial character: Ferguson v FCT.

(b) Are the activities Bobo conducts legal? Income from a business is still taxable even if it is an illegal business. Therefore Bobo's tax liability in relation to income earned will be the same. However, after the case of La Rosa, Bobo is no longer able to claim deductions in relation to expenses on illegal conduct: ss 26-52, 26-53, 26-54.

It appears that Bobo is committing tax avoidance and evasion.

Income Tax Law: Above Average Answer 1. Part 1 I am asked to advise Bertha of the tax implications of these facts. The issues are as follows: (a) whether the following amounts are assessable income: the payment of $15,000 from Bob; the money borrowed from Sharon; the $1,000 a week she makes from servicing; (b) whether the following amounts are allowable deductions: the $600 and $1,000 amounts she spent on the Adelaide trip; the rent for the Perth premises; the $800 payment to her solicitor; the $8,000 a year interest she pays on her loan from Sharon; the $100 a week she pays to Bobo; the $15,000 she spends on computer equipment; the $30,000 worth of computer parts; (c) the tax implications of the business burning te the ground. These issues are relevant because Bertha, as an individual, must pay income tax: section 4-1 ITAA97. Her taxable income is calculated by subtracting her deductions from her assessable income: s 4-15(1) ITAA97.

Part 3

(a) Is Bobo conducting a Business?

(a) Berthas assessable income

Scale is not a determinative issue as seen in FCT v JR Walker. The fact that Bobo has been carrying out this activity for 5 years and has

Assessable income consists of ordinary and statutory income: s 6-1 (1) ITAA97.

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(i) Ordinary income Ordinary income is income determined according to ordinary concepts: s 6-5(1) ITAA97. In determining whether the amounts identified at item (a) in the summary above are ordinary income, the primary issue is whether there is a nexus with an earning activity. Here, the amounts may be income from business. (ii) Is there a business? The first issue here is whether Bertha is running a business. There are several factors which go to determining whether a business exists.

Whether there is a prospect of pro.fit: one of the most important factors is whether the taxpayer's purpose was to make a profit (FCT v JR Walker). An intention to make a profit may indicate that the taxpayer is carrying on a business, even if the sale is small and no profit is actually made (FCT v JR Walker). Here, the facts indicate that Bertha is unemployed, and decides to open a computer supplies and servicing business. This suggests that she intends to make a profit from the computer supplies and servicing activities. The fact that the activities do not tum out to be very profitable will not prevent them from being classed as business activities. Repetition and regularity of the activity: this is important to the determination of whether there is a business: Ferguson v FCT. Here, the fact that Bertha makes $1,000 a week on servicing suggests that repetition and regularity exist, at least in respect of the servicing component of the business. Scale and capital: the scale of the business and amount of capital employed may also be relevant: Ferguson v FCT. Here, Bertha employed a significant amount of capital to lease premises and purchase equipment and computer parts. This suggests she is carrying on a business. Strategy: she also appears to have a business strategy targeting the computer parts and servicing market, further suggesting she is running a business: Case 1012011. Having regard to all the above indicators, it seems that Bertha is running a business. (iii) Is the income sourced from business? The amounts are likely to be income if they are sourced from Bertha's business. Income is sourced from a business if it is "made in an operation of business in carrying out a scheme for profit-making,

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rather than being a mere realisation of an investment": Californian Copper Syndicate. In applying this principle, it is necessary to have regard to the nature of the business: CMJ Services Pty Ltd v FCT.

The $1,000 a week from servicing: here, the nature of Bertha's business is that it is a computer supplies and servicing business. The $1,000 a week comes from Bertha's computer servicing activities, indicating that it is sourced from the business. In addition, it was received on a periodic, recurring and regular basis, which is an indicator of ordinary income: FCT v Dinch; FCT v Blake. As such, those amounts are likely to be ordinary income. The $15, 000 from Bob: this payment appears to be in the nature of a lease incentive. Bertha is not in the business of obtaining lease incentives. However, transactions that are "extraordinary" in the sense that they are not an ordinary incident of the taxpayer's business activities may still produce ordinary income ifthe taxpayer's intention in entering into the transaction was to make a profit: Myer Emporium. A scheme may be a profit-making scheme notwithstanding that neither the sole nor the dominant purpose of the scheme is profit-making: FCTv Cooling.

In FCT v Cooling, a lease incentive paid to a firm of solicitors was ordinary income, because: the taxpayer operated from leased premises, so leasing premises was in the ordinary course of the taxpayer's business activities; and a not insignificant purpose of the transaction was obtaining a commercial profit by way of the incentive payment. A lease incentive was also ordinary income in FCTv Montgomery. Here, Bertha operates from leased premises, and it seems likely that at least one purpose of entering into the lease was to make a profit via the lease incentive. In both Cooling and Montgomery it seems likely the payment was ordinary income.

The loan: the loan allows Bertha to set up the business; as such, rather than being ordinary income, it probably goes to the structure of the business and is of a capital nature. Timing: income is taxable in the income year it is "derived": s 6-5 ITAA97. Regardless of which accounting basis Bertha adopts, the above amounts are derived, and will be taxable, in the 2014-15 income year.

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(b) Deductions The ITAA97 allows both general and specific deductions, with specific deduction provisions usually prevailing if there is a conflict: s 8- lITAA97. As such, we first consider whether any of the amounts at item (b) in the opening summary above are specific deductions. (i) Uniform CapitalAllowances The $15,000 Bertha spends on computer equipment may be deductible under the uniform capital allowance regime. You can deduct an amount equal to the decline in value for an income year, as worked out under the regime, of a depreciating asset you held for any time during the year, to the extent that you used the asset for the purpose of producing assessable income: s 40-25 ITAA97. A depreciating asset is an asset that has a limited effective life and can reasonably be expected to decline in value over the time as it is used, other than land, an item of trading stock or an intangible asset: s 40-30(1) ITAA97. Bertha only expects the computer equipment to be useful for 4 years, suggesting it is a depreciating asset. As Bertha is the legal owner of the equipment, she "holds" the equipment within the meaning of the division: s 40-40 ITAA97. A depreciating asset starts to decline in value from its "start time'', or the time the entity first uses the asset or has it installed ready for use for any purpose: s 40-60(2). Presumably Bertha has the equipment installed in the 2014-15 income year, but we need more information to identify the precise start date. Calculating deduction: Bertha can choose to use either the diminishing value method or the prime cost method to calculate her deduction: s 40-65(1). The diminishing value method presumes the annual decline in value is higher in earlier years while the prime cost method assumes the decline in value happens evenly over the life of the asset. For both methods, the calculation for the first year will be pro-rated to reflect the acquisition part way through the year. The equipment's base value in the 2014-15 year is its cost, namely $15,000: s 40-70(1). For each subsequent year, the equipment's base value is its cost minus any decline in value to that point, plus any amounts Bertha is taken to have paid for each economic benefit that has contributed to bringing the asset to its present condition or location in that year: ss 40-70( 1), 40-190(2). Bertha has self-assessed the equipment's effective life as 4 years: s 40-95. As Bertha used the

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equipment entirely for the purpose of producing assessable income, there is no need for apportionment: s 40-25 ITAA97. (ii) General deductions The other items identified at item (b) in the opening summary must be considered under the general deductions provision, s 8-1 ITAA97. This allows deductions for losses or outgoings to the extent that they are: incurred in gaining or producing your assessable income; or necessarily incurred in carrying on a business for the purpose of gaining or producing your assessable income. Section 8-1(2) ITAA97 also contains several "negative limbs" that prevent an amount being deductible, even if the requirements of s 8-1(1) are met. There appears to be a significant overlap between the positive limbs of s 8-1, with the first limb covering almost all of the ground of the second limb. As such, I will first consider the amounts under the first limb. In order to be deductible, a loss or outgoing must be incurred " in the course of' gaining or producing assessable income, in the sense of being "incidental and relevant" to the taxpayer's business operations: FCTvDay. TheAdelaide trip expenses: costs incurred before the commencement of a business are generally not deductible under s 8-1: Softwood Pulp & Paper Ltd. In Softwood Pulp & Paper Ltd, the costs of feasibility studies were not deductible under s 8-1. Here, Bertha took the Adelaide trip before commencing her business, in order to assess the feasibility of starting the business in Adelaide. On the basis of Softwood Pulp the amounts she spent on airfares and accommodation are probably not deductible. The rent: the rent Bertha pays for her premises is connected to "whatever is productive of the assessable income'', because it allows Bertha to run her business from her premises. As such, it is probably deductible under s 8-1. The solicitors fees: in FCT v Day, legal expenses incurred by a customs officer in defending charges of failing in his duty were deductible, because his duties as a customs officer, and the possible consequences to him of disciplinary proceedings, formed part of what

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was "productive of his assessable income". Here, we have already established that the lease incentive probably forms part of Bertha's assessable income. As such, legal expenses incurred in trying to obtain the payment are probably sufficiently connected to matters "productive of her assessable income" as to be deductible. The interest paid to Sharon: the interest is paid on a loan which Bertha used to set up her business. As such, it is sufficiently connected to Bertha's business and is probably deductible. Bertha carries on paying interest after she gives up on the business.

Chapter 9 - Sample Examination Questions and Answers

(c) Destruction of business The trading stock rules usually operate to defer recognition of the cost of trading stock until the stock is sold, by re-including an amount equal to the difference between the trading stock on hand at the start and end of the income year in a taxpayer's income or deductions (s 70-35). Here, the trading stock was destroyed, so the value of stock on hand at the end of the 2014-15 income year is zero. The value of trading stock on hand at the start of the year was also zero. As such, the trading stock rules will not change Bertha's tax position.

An outgoing will probably be deductible if it meets the nexus

requirement, even if it has been incurred in a later income year and in the meantime the business has ceased: AGC v FCT; Placer Pacific Management Pty Ltd v FCT (cf Amalgamated Zinc v FCT). Here, on this basis, the income probably continues to be deductible after the business has ceased.

The amount paid to Bobo: the amount paid to Bobo is sufficiently connected to Bertha's business to fall within the positive limbs of s 8-1. However, s 8-1 (2) ITAA97 states that you cannot deduct a loss or outgoing under s 8-1 to the extent that it is of a capital nature. Expenditure to protect the business structure or organisation will be on capital account: Sun Newspapers. Expenditure intended to protect profitability, where there is no threat to the existence of the business, may be on revenue account: FCTv Rothmans; FCTv Snowden and Wilson. As such, ifBertha paid Bobo merely because she feared that if she didn't, it would destroy the profitability of her business, the amount will probably be on revenue account. However, Bobo's threats to vandalise "or worse" Bertha's shop suggests that he posed a threat to the very existence of her business. As such, the amount paid to Bobo is likely to be on capital account, and not deductible under s 8-1. It is possible it might be deductible over 5 years under the business-related "black hole" expenditure provisions ins 40-880 ITAA97.

The computer parts: the computer parts are likely to be trading stock within the meaning ofs 70-10 ITAA97, because Bertha acquired them for the purpose of sale. As such, the $30,000 will be immediately deductible under s 8-1 (1) as an ordinary revenue expense: s 70-25.

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2. Part 3 The issues here are whether: (a) the amounts Bobo receives from Bertha and other business people are ordinary income; and (b) whether the amounts he pays to Lucy are deductible.

(a) Ordinary income The amounts may be income from business. (i) Is there a business?

The issue here is whether Bobo is running a business. Whether Bobo intends to make a profit: as discussed in question 1, the issue of whether Bobo intends to make a profit is very important here. The fact that he is collecting money from a number of people and that he employed Lucy to help him, suggests that he intended to make a profit. Repetition and regularity: the fact that Bobo collects money on a regular basis from a number of business people suggests that his activities have repetition and regularity, which indicates he is running a business: Ferguson v FCT. Scale: in addition, the scale of operations seems relatively large, which is also an indicator of a business: Ferguson v FCT

Organisation: there is also evidence that Bobo conducts his business in a systematic and organised manner in the sense of employing Lucy to help him gather information. This further indicates that he is running a business: Ferguson v FCT; FCT v JR Walker.

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(ii) Illegality It seems that Bobo is in the business of collecting "protection money". The fact that his activities are illegal does not prevent them from being business activities: La Rosa.

(iii) Sourced from the business The amounts Bobo obtains as protection money are sourced from the business, because they are "made in an operation of a business in carrying out a scheme for profit-making": Californian Copper Syndicate. In addition, they are received on a periodic, recurring and regular basis: FCT v Dixon; FCT v Blake. As such, these amounts are ordinary income, and have been taxable for the last 5 years.

(b) Deductions The amounts Bobo pays Lucy are primafacie deductible under s 8-1, because they are incurred "in the course of' gaining or producing assessable income: FCT v Day. However, s 26-54 ITAA97 states that you cannot deduct a loss or outgoing to the extent that it was incurred in the furtherance of, or directly or indirectly in relation to, a physical element of an offence against Australian law of which you have been convicted. As Bobo has not been convicted of an offence, the fact that his activities are illegal will not prevent the amount he pays to Lucy from being deductible: La Rosa.

3. Part 2 The issue here is whether the sale of the vacant land is a CGT event, and results in a capital gain or loss. Bob acquired the land after 20 September 1985, so the CGT rules will apply: ss 104-10(5); 104-25(5) ITAA97. You make a capital gain or loss if and only if a CGT event happens: s 102-20 ITAA97. CGT event Al happens if you dispose of a CGT asset: s 104-10(1) ITAA97. The definition of CGT asset includes any kind of property: s 108-5(1) ITAA97. As such, the land will be a CGT asset. Selling an asset is a "disposal" within the meaning of s 104 ITAA97: s 104-20. As such, by selling the land in December 2015, CGT event Al occurs when you enter into the contract for the disposal, or if there is no contract, when the change of ownership occurs: s 104-10(3). On the facts, it appears likely that both entry into the contract and disposal occurred in the 2015-16 income year.

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By entering into the contract of sale, Bob also created a contractual right in the seller, namely CGT event D2 occurred. Further, because the contract for sale was performed, CGT event C2 occurred: s 104-25; FCT v Orica. However, the relevant CGT event is the one that is most specific to the circumstances, and here that is CGT event Al: s 102-25(1) ITAA97. In relation to CGT event Al, you make a capital gain ifthe capital proceeds from the disposal are more than the asset's cost base. You make a capital loss if those capital proceeds are less than the asset's reduced cost base: s 104-10(4) ITAA97. The capital proceeds are the total of: the money you have received, or are entitled to receive, in respect of the event happening; and the market value of any other property you have received in respect of the event happening: s 116-20(1) ITAA97. Here, the capital proceeds are the sale price of$180,000. Cost Base: the cost base of a CGT asset consists of five elements; including the money you paid to acquire the CGT asset: s 110-25(2) ITAA97. Bob has however experienced another CGT event when the shop burned down. This is CGT Event Cl dealing with the destruction of an asset. An asset includes a part asset. The shop's destruction would have triggered a capital loss for Bob as he received no compensation or insurance payout.

As there are two CGT events, the original cost of the land and building together ($210,000) will need to be apportioned between the two to calculate any capital gains or losses. Bob will make a capital loss on the shop's destruction and he may be able to offset this against any gain he makes on the sale of the land. The cost base of a CGT asset also includes the costs of ownership, including the costs of maintaining or repairing it: s 110-25(4).As such, the $50,000 Bob spent on having the land cleaned up will form part of the cost base of the land when working out that gain. The rent Bob obtained from Bertha was income from property: Adelaide Fruit and Produce Exchange. The $15,000 lease incentive he paid is probably deductible under s 8- 1 as it is sufficiently connected to the ordinary income he obtained from the rent.As such, the $15,000 does not form part of the cost base: s 110-45(2) ITAA97.

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Roll-over relief may be available if the CGT asset you own is lost or destroyed (in whole or part): s 124-70 ITAA97. However, roll-over relief is only available if you receive money or a CGT asset or both as compensation for the event happening or under an insurance policy: s 124-70 ITAA97. As Bob did not have an insurance policy, he will not be able to claim roll-over relief in respect of the destruction of the building.

Income Tax Law: Examiner's Comments Tax law exams that offer a practical scenario will either ask a student to comment on all the tax implications of the scenario, ask them specific questions or a combination of both. The first task of the student is therefore to identify what is being asked for. If the questions are specific, the student will waste time and marks devoting effort to commenting on issues that are not being asked about. On the other hand, if the questions are open-ended and ask for all the tax implications of the factual scenario, then the identification of the relevant issues is one on the core tasks of the examination. The sample exam here asks open-ended questions in that it asks for the "tax implications" of the factual scenario. The student is however assisted by the exam dividing this open-ended question into different parts that focus on the different taxpayers. This means that students need to focus on which taxpayer they are talking about in each part and not confuse issues that are relevant to one taxpayer and not another. If this divide had not been made, students would need to ensure they identify all relevant taxpayers and all relevant issues for each taxpayer to avoid confusing the analysis of different taxpayers. It is common for weaker exam answers to have some confusion. For example, in this exam it is relevant that a taxpayer might be carrying out an illegal activity. However a student needs to consider which taxpayer is carrying out the illegal activity as deduction restrictions may only be relevant to that taxpayer and not to other taxpayers who pay them. In this exam Bertha pays Bobo. Bobo may be doing something illegal. However, Bertha clearly is not and therefore Bobo's activity must not be used to influence the analysis of Bertha's deduction potential. The extent of the identification of issues and the detail to which sub-issues are identified is one of the distinguishing features of good and less good exam answers. It is clear in the two samples above that the above average answer identifies more salient issues.

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At the same time, it is often the case that a less good answer will identify issues that are not really issues or if they can be called issues, they do not merit detailed attention as they are in fact quite clear cut. The average answer, for example, considers whether Bertha has a company when there is no need to. Most competent answers will, however, identify most of the critical issues at one level. However, it is in the detail and appropriateness of the analysis that above average answers differ from average answers. The above two answers, for example, both identify that it is relevant to determine whether Bertha is carrying on a business. The above average answer's analysis of this issue is, however, far more nuanced, developed and specific. It also notably separates the issue of whether there is a business from whether the income is from the business. This is not done in the average answer. The average answer also confuses its analysis of the issue by bringing in a consideration of whether a company exists. This is not the same issue as whether there is a business. It is clear that the above average answer looks at more relevant factors and articulates the principles well. For example there is a heading, "Is there a prospect of profit?". The average answer does not articulate this principle well even though it ostensibly refers to most of the same case law. The difference in the structure and focus of the two answers is also notable. It is clear that the student writing the above average answer knows what the core issues are and sets them down with headings and appropriate analysis. The average answer is written in a more exploratory manner with issues thrown in as they come to mind. The analysis is far less sound as a result. The average answer is notable for raising possibly important issues but not really resolving them. A good answer needs to explain what the issue is, give the legal principles and references and then apply them to come to a resolution. For example, the average answer raises the issue of expenditure incurred before a business commences, provides a relevant case but never really analyses the facts in relation to the principles of the case. It simply makes a perfunctory distinction and leaves the issue. The legal references in a tax law answer are important. It is critical that when analysing an issue, the answer states what the relevant principles are and provides the appropriate legal references to support those principles. This does not mean that a candidate should write any

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case law reference they can think of on the answer, but rather only the most appropriate and sound references for the point being articulated. Of course, the analysis has to be not only complete but correct. Often exam questions will be structured to encourage debate and exploration of all sides of a relevant argument. It can sometimes be said therefore that there are no right or wrong answers and that it is the quality of the analysis that counts. While this is all true in the appropriate circumstances, an answer can also be wrong. It will be wrong when it applies an incorrect legal principle or an inapplicable legal principle. This is more likely if the candidate makes simplistic s~tements and doesn't provide a detailed analysis, for example if they simply state, "this is not deductible", without any analysis. On other occasions an answer might seize upon a statement in the facts and apply ~n in_applicable principle on a superficial basis. The average answer m this mstance does this in relation to Bob's land in that it jumps to the conclusion that Bob bought it from a friend simply because the question states that Bob's friend was involved in the construction of the building. The layout of an exam answer is also an important indicator of quality. The above average answer clearly states what issue will be analysed, analyses it and reaches a conclusion. It is notable that the issues that will be explored are clearly listed from the outset.

COMPETITION LAW Julie Clarke Sample Question Mr Vader is the CEO of Empire Ltd (Empire), the largest supplier of hardwood decking and floorboard timber in Australia. Empire does all its own logging and also manufactures hardwood structural timber as well as some softwood products. Empire sells its product exclusively to retail outlets, who supply to the trade and general public. The vast majority (approximately 90%) of hardwood timber supplied is acquired by trade customers, with the remainder acquired by the general public for DIY projects. Empire accounts for approximately 60% of all wholesale supply of hardwood decking and floorboard timber in Australia and approximately 20% of the supply of structural timber. The other key suppliers of hardwood timber in Australia are Millermium Pty Ltd (Millennium) and Falcon Pty Ltd (Falcon). Millennium is Empire's largest rival in the decking and floorboard market, with a market share of 25%, while Falcon's market share is around I 0%, with smaller rivals and specialist imports supplying the remaining 5% of the market. The cost of importing means that it is not normally cost-efficient to import hardwood timber. The market shares of each company have been relatively steady for the past five years, although both Millermium and Falcon have managed to attract a small amount of share away from Empire in that time. Although Empire benefits from significant scale efficiencies, which enable it to price more competitively than its rivals, Millermiuqi and Falcon have earned a reputation for high quality and sustainably sourced timber products. Both have earned domestic and international certifications for sustainable timber production, which has given them a competitive edge over Empire. In relation to hardwood structural timber, Millennium supplies 15% of the market, Falcon 25% and Imperial Pty Ltd (Imperial) supplies most of the remaining 40% of the market. The market shares of each company may be represented as follows:

250

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Chapter 9 - Sample Examination Questions and Answers

E

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Decking and floorboard timber

60%

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The market demand for decking and floorboard timber has remained relatively steady over time; importantly, there are very few suitable substitute decking products and, in relation to floorboards , while substitutes exist (like softwood, tiles, concrete and carpet), customers who have a preference for floorboards tend not to be highly price sensitive. It is relatively easy to switch production between the various types of hardwood timber products (decking, floorboard and structural) but more difficult to switch from production of softwood to hardwood timber products, and vice versa, because it requires long term logging plans. New entry into the hardwood timber market is very difficult and, as a result, no new entrants have emerged in the past decade.

Following a significant market review and the development of a new five year strategic plan for Empire, Vader implemented the following strategies: • He offered a discount of 20% on decking and floorboard timber to retailers who agreed to acquire all of their decking and floorboard timber from Empire or a 15% discount to those who agreed not to sell decking and floorboard timber products acquired from Millennium. • He sent a letter to all of his retailers encouraging them to review their discounting practices in relation to hardwood floorboards . The letter made reference to an attached recommended price list and warned retailers that if they continued to price below the recommended prices he would feel compelled to review his supply contracts with them. As hardwood flooring is marketed as a high end a~d _sophisticated flooring option, Vader feared that any significant or sustained discounting might reduce demand for the product in the future.

The CEOs of Millennium and Falcon also reviewed their long term business plans. Both were concerned that a decline in demand for hardwood structural timber might result in Imperial entering that market and claiming some of their market share. They agreed to merge their companies, subject to recei ving informal approval from the ACCC. The CEOs hoped that the generation of scale efficiencies would both improve their competitiveness against Empire and deter Imperial from entering into the market. Questions 1. Mr Solo, CEO of Millennium, has written to theACCC expressing concern about the discounts being offered to retailers by Empire. You are a competition lawyer at the ACCC tasked with reviewing these discounts. Please advise whether or not Empire's discounting practices infringe the Competition and Consumer Act (Cth) (CCA), providing full reasons for your advice. (1 hour) 2. Ms Rey, marketing director of Jakku Pty Ltd, a hardware retailer, is concerned about Empire's letter relating to the pricing ofhardwood floorboards. She regularly discounts hardwood floorboards sourced from Empire and this strategy has been effective in increasing sales of flooring and other related products from her retail stores. She wishes to continue discounting but cannot risk having her supply from Empire cut off. Ms Rey has written to the ACCC, attaching a copy of the letter and seeking advice about whether Empire can lawfully stop supplying her if she continues to offer discounted timber.

3.

You have been tasked with reviewing Ms Rey's complaint. Please advise whether or not Empire's letter to retailers contravenes the CCA and whether or not it cab lawfully refuse to supply Jakku if it continues to discount hardwood flooring. Provide full reasons for your advice. (30 mins) You work in the mergers branch oftheACCC. Please advise whether or nottheACCC should grant informal clearance for the proposed merger between Millennium and Falcon. Provide full reasons for your advice. (30 mins)

[Suggested time: 2 hours plus 30 minutes reading time} 252

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Competition Law: Average Answer 1. Question 1 Empire's offer of discounts may constitute exclusive dealing or misuse of market power. (a) Exclusive dealing (i) Exclusive dealing conduct

Exclusive dealing is prohibited by s 47(1) of the CCA and includes offering a discount in relation to the supply goods on condition that the person to whom you supply will not acquire goods or services (or will not acquire them except to a limited extent) from a competitor or will not re-supply goods or services acquired from a competitor. In relation to the 20% discount, Empire offered to supply goods at a discounted price on condition that retailers did not acquire the product from any competitor. In relation to the 15% discount, Empire offered to supply goods at a discounted price on condition that the retailers did not acquire goods from a particular competitor. Both are forms of exclusive dealing. (ii) Substantial lessening of competition (SLC)

To contravene the CCA the exclusive dealing involved must have the purpose, effect, or likely effect of SLC: s 47(10).

Chapter 9 - Sample Examination Questions and Answers

held to have the effect or likely effect of SLC. Even if effect or likely effect cannot be established, it is arguable the conduct has the purpose of SLC; this would be sufficient to establish a contravention. (b) Misuse of market power Empire's conduct may also constitute a misuse of market power (s 46). (i) Substantial market power (SMP)

Empire holds 60% of the market; its nearest rivals only hold 25% and 10% respectively. Barriers to entry are high and the potential for imports is limited. It is almost certain that Empire will be held to have substantial market power. (ii) Taking advantage of market power

Section 46 requires that the party with market power "take advantage" of that market power. This is a difficult test to satisfy (Me/way; Rural

Press). Discounts like this are frequently offered by firms lacking market power and do not depend upon market power. Based on the courts' narrow interpretation of "take advantage", it is unlikely this element would be satisfied. (iii) Pwpose

In 0 'Brien, the Court held that similar discounts had the effect of substantially lessening competition. 0 'Brien held approximately

The final element to be established is a prohibited purpose.

40% of the market; in this case Empire holds 60% of the market and the discounts are likely to be held to have the effect of substantially lessening competition. Empire's two existing competitors have not increased their market share significantly in recent years and any exclusive contracts Empire obtains from retailers are likely to make it harder for them to do so in the future. Although there is the scope for producers of structural timber to enter the market, the fact that they do not appear to have done so to date suggests that this does not present a great risk.

In relation to the 20% discount it is arguable that Empire had the prohibited purpose of preventing competitive conduct or preventing entry by, for example, making it more difficult for other suppliers to obtain access to retailers. In relation to the 15% discount, it is almost certain that Empire had the substantial purpose of eliminating or substantia lly damaging a competitor (Millennium). Although Empire has substantial market power and (almost certainly) a prohibited purpose, as there has been no "taking advantage" of market power, s 46 has not been breached.

More information about the market is needed before a conclusion can be reached; for example, how many retailers are there and are there existing discount schemes in place from Empire or other suppliers. However, on the facts available there is a risk that this conduct will be

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Mastering Law Studies and Law Exam Techniques

2. Question 2

3. Question 3

Empire 's letters to retailers encouraging them to review their discounting practices raises the issues of resale price maintenance (RPM) and misuse of market power.

Millennium and Falcon wish to merge. Mergers are prohibited where they have the effect or likely effect of substantially lessening competition in a market (s 50). The ACCC is guided by their Merger Guidelines 2008 when assessing merger. In this case the relevant market is the wholesale market for hardwood decking and floorboard timber in Australia, in which Empire holds 60% of market share, Millennium holds 25% and Imperial holds 10% (s 50(6)). To determine whether the merger will SLC a counterfactual test ("with and without" test) is applied. Without the merger the market ~ill remain substantially the same. With the merger, the second and th.trd largest firms will combine to become the second largest. The quest10n is whether the level of competition in each of these counterfactual markets is substantially different. Section 50(3) sets out a number of mandatory criteria for the court to consider when assessing whether there will be an SLC:

(a) Resale price maintenance (RPM) Section 48 prohibits a corporation engaging in RPM. (i) Th e le tte r to re tailers

RPM includes a supplier inducing, or attempting to induce a second person not to sell at less than a specified price (s 96(3)(b )). This is what has happened here. The only issue is whether or not the recommended price list constitutes a "specified price" below which the timber could not be sold. Even though it is referred to as a recommended price, and recommended prices are not automatically prohibited (s 97), in this case the list was accompanied by a threat to reconsider future deals if the recommended price was not followed. As a result, it will constitute a specified price and, combined with the threat to reconsider supply, will constitute a prohibited form of resale price maintenance. It is not necessary to prove that the conduct would substantially lessen competition. (ii) R efusal to supply

Empire cannot lawfully refuse to supply Jakku because of continued discounting. This would constitute RPM under s 96(3)( d) (withholding goods because a retailer has sold at less than specified price). Provided that this was the reason for withholding (and Empire will have the onus of proving it is not: s 100) then Empire would be guilty of RPM if it stopped supplying Jakku in the future . (b) Misuse of market power It is arguable that the letter, and threat to refuse supply for discounting, could constitute a misuse of market power. Empire has substantial market power and it may be possible to establish that it had a prohibited purpose of deterring competitive conduct. However, it is unlikely the take advantage element would be satisfied, because it is not necessary to have market power in order to engage in RPM.

• Import competition (not much); • Barriers to entry (high); • Concentration (high - theACCC will use the HHI test to determine concentration levels. This will show a high level of concentration and also a significantly higher level of concentration with the merger than without); • Countervai I ing power (more information needed about the retailers - not likely to be significant countervailing power); • Likelihood the merger will increase prices and profits (not clear; merged entity will still be smaller than Empire so will not be .a?le to unilaterally increase post-merger, but it may reduce competitive pressure in the market and increase market pric@s generally); • Substitutes (no good demand substitutes; but could be supply substitutes); • Dynamic nature of market (not particularly dynamic - appe.ars little innovation - but some product differentiation (qualtty/ sustainability)); • Likelihood merger will remove vigorous competitor (it will merge two vigorous competitors, effectively eliminating one); • Extent of vertical integration (no apparent vertical integration).

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In some respects the merger may help the merged entity to compete with Empire. However, as this is a merger from effectively three companies to two companies, there is a serious concern that it will have the potential to substantially lessen competition, including by limiting choice for retailers. I would recommend against granting informal clearance.

Competition Law: Above Average Answer 1. Question 1 Empire's offer of discounts to retailers who agree to acquire all of their hardwood timber and floorboards from Empire, or who agree not to supply such timber from its competitor, Millennium, constitute forms of exclusive dealing which may contravene the Competition and Consumer Act 2010 (CCA). This conduct may also constitute a misuse of market power. (a) Exclusive dealing (i) Exclusive dealing conduct

Exclusive dealing is prohibited by s 47(1) of the CCA. It includes offering a discount in relation to the supply goods (s 47(2)(c)) on condition that the person to whom you supply will not acquire goods or services (or will not acquire them except to a limited extent) from a competitor (s 47(2)(d)) or will not re-supply goods or services acquired from a competitor (s 47(2)(e)).

In relation to the 20% discount, this is a form of solus agreement; Empire has offered to supply goods at a discounted price (s 47(2)(c)) on condition that the retailers do not acquire structural timber from a competitor (s 47(2)(d)). Although the condition is expressed in the positive rather than negative (purchase all timber from me instead of "don't purchase from C") the effect is the same (see 0 'Brien Glass v Cool & Sons) .

In relation to the 15% discount, this constitutes an offer to supply goods at a discounted price (s 47(2)(c)) on condition that the retailers do not re-supply the goods acquired from a particular competitor (s 47(2)(e)).

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(ii) Substantial lessening of competition (SLC)

These forms of exclusive dealing will only contravenes 47(1) of the CCA if they have the purpose, effect or likely effect of SLC: s 47(10). When making this determination, it is possible to take into account conduct "of the same or a similar kind" which together might have or be likely to have the effect ofSLC (s 47(10)(b)). The 0 'Brien case involved similar discounts. The Court held that the purpose of the discounts was to coerce retailers into dealing with it rather than its competitors, and that this had a tendency to "lower the forces of competition in the market" by reducing the capacity of retailers to choose between suppliers. In determining that this substantially lessened competition, the Court was influenced by the fact that 0 'Brien occupied approximately 40% of the market and had a retail business. In this case, although Empire does not have a retail business, it is at least arguable that the discounts may have a similar impact. We are told that Empire holds 60% of the market for decking and floorboard timber, the largest share by a considerable margin. The challenges of market entry and cost of imports suggest little threat to its share from new entry or imports. Although Empire's two existing competitors have increased their share of the market in recent years as a result of their reputation for quality and sustainability, there does not appear to be a risk that they will expand so significantly as to threaten Empire's market position, particularly given the significant scale efficiencies enjoyed by Empire. Although there is the potential for producers of structural timber (like Imperial) to switch production to decking and floorboard timber, the facts do not suggest that there is a significant threat of this occurring; however, more detail about the current state of the structural timber market would assist in making this assessment. The facts also indicate that there are few substitutes for decking products and that, although there are alternatives to floorboards, consumers who favour floorboards do not appear to be price sensitive. As a result, it does not appear that the availability of substitutes would limit the risk of the conduct lessening competition. However, before a conclusion can be reached about whether the conduct would be likely to SLC, more information is required about the market. The following information would assist in making an assessment of competitive impact: the number of retailers in the market, the extent to which retailers currently stock products from more than one supplier, the extent to which trade customers value retailers

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stocking more than one product (although a market can be competitive notwithstanding exclusive suppliers (Outboard Marine)), the extent to which Empire's products are considered essential stock (either because of volume or range) and the extent to which exclusivity or volume discounts are already offered by Empire or by other suppliers. None of this information is available on the facts. On the facts available, it is arguable the conduct would substantially lessen competition, particularly if it had the capacity to make entry or expansion more difficult ( 0 'Brien). Even if the conduct would not have the effect or likely effect of SLC, it is arguable that the purpose of the conduct is to SLC. If it can be established that this was a substantial purpose (s 4F) of Empire's then they will have contravened s 47. More information is needed in order to make this determination. (b) Misuse of market power It is also possible that Empire's conduct constituted a misuse of market power (s 46). (i) Substantial market power (SMP)

The first element in a s 46 claim is SMP. Section 46(3C) provides that a corporation may have SMP even though it doesn't substantially control it or have absolute freedom from constraint from competitors or customers. We are told there is a broad market for the wholesale supply of hardwood decking and floorboard timber products to retailers in which Empire holds about 60% and its nearest rivals only 25% and 10% respectively, with the potential for imports limited because of high costs; we are also told barriers to entry are high, although it would be possible for suppliers of structural decking products to switch production to decking and floorboard timber. Despite a possible threat of entry from Imperial or expansion from Millennium and Falcon, Empire's share of the market is considerable and it is likely to remain so in the short to medium term. Given the substantial barriers to new entry and the lack of threat from imports, it is likely Empire will be held to have substantial market power. It is likely that Empire has SMP in the wholesale decking and floorboard timber market.

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(ii) Taking advantage of market power

Section 46 requires that the party with market power "take advantage" of that market power. This is a difficult test to satisfy. Section 46(6A) assists by providing that the court may have regard to whether the conduct was materially facilitated by the SMP, whether it relied on the SMP when engaging in the conduct, whether it would have engaged in the conduct absent the SMP and whether its conduct was otherwise related to the SMP. Nevertheless, the courts have interpreted the requirement so as to exclude conduct that could have been commercially engaged in by firms lacking market power (Me/way;

Cement Australia). In relation to the solus agreement, it is unlikely a court would find that this was dependent on market power. Discounts of this nature are commonly offered by firms lacking market power and do not depend upon the existence of market power. In relation to the second form of exclusive dealing (offering a discount to retailers who agreed not to sell decking and floorboard timber products acquired form Millennium) it is arguable that Empire would not have engaged in the discounting conduct absent SMP, because retailers wishing to stock Millennium products could have simply sourced the bulk of their supplies from a competitor. Nevertheless, as with the solus agreement, the discount does not depend upon the existence of market power and therefore the court is unlikely to find that the "take advantage" element has been satisfied. (iii) Purpose

The final element to be established for a misuse of market power claim is that Empire had a prohibited purpose. In relation to the first discount it is arguable that Empire had the purpose of substantially damaging a compet1tor, preventing competitive conduct or preventing entry by, for example, making it more difficult for Imperial to expand into the market if its exclusivity discounts limited the number of outlets to which it could supply. In relation to the second discount, which deliberately refers to Millennium, there is a strong argument that it had the substantial purpose of eliminating or substantially damaging a competitor. Despite the fact that Empire almost certainly has substantial market power and, at least in relation to the second form of exclusive dealing, a prohibited purpose, it is unlikely that the take advantage element

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will be satisfied. As a result, it is unlikely that Empire has contravened s 46. (c) Anti-overlap Where conduct constitutes a form of exclusive dealing it will not be caught bys 45 of the CCA (s 45(6)). As there is no doubt the conduct constitutes a form of exclusive dealing (even if it does not SLC), s 45 will not be considered further. ( d) Conclusion Empire has engaged in exclusive dealing conduct; however, this conduct will only breach s 47 of the CCA ifit has the purpose, effect, or likely effect of substantially lessening competition. It may be difficult to establish that it would have the effect on the facts; it is, however, more likely that this purpose could be established. More market and corporate information is needed in order to make a more confident prediction about whether or not this requirement has been satisfied. It also appears that Empire has substantial market power and its conduct may have had at least one of the prohibited purposes set out ins 46 of the CCA. However, it is unlikely the conduct involved here would satisfy the "taking advantage" requirement for establishing a misuse of market power, because it is the sort of conduct capable of being engaged in by firms lacking market power. Consequently, it is unlikely this provision has been contravened.

2. Question 2 Empire's letters to retailers encouraging them to review their discounting practices raises the issues of resale price maintenance (RPM) and misuse of market power. (a) Resale price maintenance (RPM) Section 48 prohibits a corporation engaging in RPM. There are two separate questions to consider; whether the letter itself contravenes the CCA and whether Empire can lawfully refuse to supply Jakku if it continues to discount.

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(i) The letter to retailers

Section 96 defines RPM as including the supplier inducing, or attempting to induce, a second person (retailers) not to sell at less than a specified price (s 96(3)(b)) and the supplier using, in relation to goods supplied, a statement of price likely to be understood as the price below which the goods are not to be sold (s 96(3)(f)). It also defines RPM as including a supplier making it known to a second person (retailer) that it would not supply goods unless they agreed not to sell below a specified price: s 96(3)(a). These definitions of RPM are likely to be satisfied. The only significant issue is whether or not there is a "specified price" or statement of price likely to be understood as the price below which goods are not to be sold. Almost certainly the recommended price list, attached to the letter, would satisfy this requirement. Although there will not be a contravention ofs 96(3)(b) by reason only of the inclusion of a recommended price list (s 97), in this case the list is accompanied by an implicit threat than anyone pricing below the list prices would have their contracts reviewed and may be denied future supply. RPM is prohibited regardless of its impact on competition and there is no relevant defence that would protect Empire. The letter to retailers clearly contravenes s 48 of the Act. (ii) Refusal to supply

Empire could not lawfully refuse to supply Jakku based on its continued discounting. Section 96(3)(d) states that it is RPM for a supplier to withhold goods because a retailer has sold or is likely to sell goods supplied to it by the supplier at a price less than the specified price. In this case, if Empire refused future supply to Jakku as a result of its discounting conduct, this definition would be satisfied and it will have contravened s 48 of the CCA. To assist, s 100 provides (in effect) that where RPM is alleged, if it is established that Empire has withheld supply and that it was previously supplying the goods to Jakku and that, in the six months prior to the withholding Empire became aware of a matter or circumstance capable of constituting a reason for withholding under s 96(3)(d) (including Jakku selling goods below a specified price) it will be presumed that this reason was the reason for withholding. This would assist Jakku in establishing a contravention in the event Empire withheld goods. Empire would then have the onus of demonstrating

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that it was withholding goods for a reason unrelated to the discounting, which is likely to prove difficult. (b) Misuse of market power It is arguable that the letter, and implicit threat ofrefusal to supply for discounting, could constitute a misuse of market power. It is likely that Empire has substantial market power and that at least one of its substantial purposes was to deter competitive conduct engaged in by its retailers (even if another purpose may have been to retain the "highend" perception of the product). However, for reasons discussed in Question 1, it is likely that a party without market power might have found it commercially rational to engage in the same conduct, with the result that it will be difficult to establish the "take advantage" element ofs 46 (Me/way; Cement Australia). (c) Conclusion Empire's conduct in sending the letter constitutes resale price maintenance in contravention of s 48. In the event that Jakku continued discounting hardwood flooring, Empire could not lawfully refuse supply to it on the basis of that discounting; doing so would almost certainly constitute a form of RPM prohibited by the Act. It is, however, unlikely the conduct would constitute misuse of market power.

3. Question 3 Millennium and Falcon wish to merge. They hope to generate scale efficiencies to improve competitiveness against Empire and deter Imperial from entering the market. I have been asked to advise whether or not informal clearance should be granted by the ACCC. The ACCC will only grant informal clearance where confident the merger will not contravene s 50 of the CCA. Section 50 prohibits a corporation directly or indirectly acquiring shares or assets, it if would have the effect or likely effect of substantially lessening competition. It is, therefore, necessary to assess whether or not a merger between Empire and Imperial would SLC in the market. In making this assessment the ACCC is guided by their 2008 Merger Guidelines. The competition concerns may arise in the form of either coordinated or unilateral effects post-merger. The main concern here

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is likely to be post-merger coordinated effects, because the merged entity will still hold significantly less share than Empire. (a) Market Section 50(6) defines market for the purpose of s 50 as a market for goods or services in Australia, or a state, or a territory or a region of Australia. In this case we are told that there is a wholesale market for hardwood decking and floorboard timber in Australia, in which Empire holds 60% of market share, Millennium holds 25% and Imperial holds 10%. (b) Substantial lessening of competition To assess whether the merger will SLC in this defined market, a counterfactual test (or "with and without" test) will be applied (AGL; Metcash). In other words, what will the market position be post-merger and will it represent a substantial reduction in competition compared with the likely position without the merger? The market with the merger is normally considered to be likely to be the same as at the time of the proposed merger; there is nothing to suggest that a different approach should be applied in this case. It is therefore necessary to compare the existing state of the market with the position that would prevail with the merger. Section 50(3) sets out a number of criteria to which the court must have regard when assessing whether the merger will SLC. Several of these criteria suggest that there is a significant risk that the merger will SLC:

• Concentration (s 50(3)(c)): the ACCC will be concerned about mergers where the post-merger market share exceeds 20% (which it will here) and where the HHI (concentration index) exceeds 2,000 and the delta greater than 100. The level of concentration in this market is very high, with 60% of the market held by one company and 35% held by the parties proposing to merge. On ly 5% of the market is supplied by smaller entities and specialist importers. The HHI is determined by squaring the market share of each firm and adding these together. Although we don't know the precise breakdown of the 5% share of the market held by other companies, this will not have a significant impact on the HHI, so I will assume it is one company. The HHI is, therefore: ( 6(J2 + 252 + 102 + 52 = 4,350) . In the event that the merger took place

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and the shares of the market participants were not immediately altered, the HHI post-merger would be (60 2 + 3Y + Y = 4,850), representing a change (delta) of 500, far exceeding the point at which the ACCC is likely to raise some concerns.

• Barriers to entry (s 50(3)(b)): the barriers to entry to the market appear to be high. We are told that the market shares of existing companies have remained relatively steady for the past five years and that new entry is very difficult. It is therefore unlikely that new entry would emerge to improve the competitive state of the market following the merger.

• Import competition (s 50(3)(a)): the actual and potential level of import competition in the market is negligible, given the cost of importing timber. It is therefore unlikely that the threat of imports will reduce the risk of a substantial lessening of competition from the merger.

• Countervailing power (s 50(3)(d)): the degree of countervailing power in the market is unclear. We are not told how many retailers there are or the extent to which they are able to dictate or negotiate terms of trading with the existing suppliers. Nothing on the facts suggest that countervailing power would alleviate potential competition concerns arising from the merger, but more information is needed to be sure.

• Demand substitution (s 50(3)(/)): there are limited substitutes on the demand side for decking and floorboard timber.

• Removal of vigorous competitor (s 50(3)(h)): the merger will remove a vigorous competitor from the market (Falcon); however, it will also arguably increase the capacity for the merged entity to compete against Empire.

• Static nature of market (s 50(3)(g)): the market does not appear to be particularly dynamic. There is some product differentiation between the proposed merging parties and Empire (quality and sustainably certification), but this does not appear to have had a significant impact on the market. The merger will remove the competition between Millennium and Falcon in relation to any existing points of differentiation; conversely it may enhance their ability to differentiate their product from Empire's in the future. On the other hand, there are a number of factors suggesting that the merger may not substantially lessen competition :

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• Increasing prices or profits (s 50(3)(e)): it is not clear that the merger would result in the merged entity being able to "significantly and sustainably increase prices or profit margins'', given that it would still hold significantly less market share than its nearest rival.

• Supply substitution (s 50(3)(/)): suppliers of structural timber - in particular Imperial - may be able to relatively easily switch production and supply into the decking and floorboard timber market. This is likely to place some constraint on the ability of the merged entity to significantly increase prices as a result of the merger.

• Vertical integration (s 50(3)(i)): there does not appear to be any vertical integration in the market (at least at the wholesale/retail level) although we are told Empire sources its own timber; it is not clear if this is also the case for Millennium and Falcon, although the facts suggest this is likely. The merger will not alter this. In addition, the merger could generate efficiencies which could increase the ability of the merged entity to place pricing pressure on Empire; however, post-merger it may lack the incentives to do this, with the result that the benefit of any efficiencies may not be passed on to consumers. Notwithstanding the existence of limited imports and small specialist suppliers, the proposed merger is effectively a 3- 2 merger which will result in a very high level of concentration in an already concentrated market. This will reduce the choice available to retailers and, by extension, to consumers. It will also increase the prospect of coordinated effects resulting from the merger. On balance, based on the available market information provided, the ACCC should not grant informal clearance for this merger.

Competition Law: Examiner's Comments Competition law exams are challenging for students because of the complexity of the statutory provisions, the potential for the same conduct to contravene multiple provisions and the sometimes confusing way in which the Act deals with this overlap. It is also challenging because it involves interdisciplinary concepts; in particular, it requires students to have an understanding of the economic concepts that are embedded within the Act and, in cases

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involving potential authorisations or notifications, requires students to understand broader issues of public policy. The most obvious distinction between the average and above average answers is the length. Although longer answers are not always better, short answers will often lack the necessary depth and analysis required to achieve higher grades. That is the case here. The average answer identifies all key issues, demonstrates some understanding of the relevant legislation and applies that law to the facts provided reasonably well. However, the analysis is relatively superficial and fails to address some of the more technical aspects associated with the relevant provisions. For example, in the first question it doesn't explain the differences between the 0 'Brien case and the present case and provides only superficial consideration of the substantial lessening of competition test (for exclusive dealing) and the misuse of market power provision. The response to Question 2 does not fully explore all possible contraventions of the RPM provisions and the competitive analysis of the proposed merger in Question 3 is also quite limited. The above average answer is clearly structured and demonstrates a much deeper understanding of the relevant provisions. It also makes better use of case law and identifies specific sub-sections of the Act, rather than simply top-level provisions. It also rounds out each question with a clear conclusion. Although it should not be considered a fully comprehensive answer, as Questions 1 and 3, in particular, raise complex questions about the market and the competitive effects associated with the conduct involved, within the time constraints associated with exams, this answer provides a high level of analysis of the core issues. In relation to the specific issues: • Exclusive dealing: the conduct involved in Question 1 is clearly exclusive dealing, with the focus being on the likely anticompetitive effect of the conduct. The above average answer makes better reference to relevant parts of the legislation than the average answer. While both answers recognise the need for anticompetitive purpose or effect, the above average answer displays a deeper understanding of the concept of substantial lessening of competition and its application to the facts in this case. • Misuse of market power: the above average answer displays greater depth of analysis in relation to all of the criteria for misuse of market power than the average answer. 268

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• Resale price maintenance: the average answer correctly identifies one of the relevant forms ofresale price maintenance, but does not consider other possible forms of resale price maintenance that may be involved here. The above average answer considers all relevant forms of resale price maintenance and also demonstrates clearer understanding of the deeming provision that may be relevant to the withholding of supply portion of the question (s 100). • Mergers: both answers address the key issues and criteria used to assess whether or not a merger might substantially lessen competition. However, the above average answer deals more extensively with the various criteria, demonstrating a more thorough understanding of the provisions and how they might apply to the facts in this case.

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Chapter 10 - Study Strategies and Suggestions for Commerce Students

Chapter 10

Study Strategies and Suggestions for Commerce Students Michael Kobetsky

itself, based on their experience teaching law, they are likely to offer suggestions along the lines of those found in this book. The second purpose of this chapter is to modify for commerce students the information contained elsewhere in this book. Exams in law subjects taught to commerce students are similar to but not the same as exams in law subjects taught to law students. While the basic guidelines and rules described elsewhere in this book are equally sound for law and commerce students, they may be even more helpful to commerce students if modified slightly to take into account the slightly different skills being examined in a law course designed for commerce students. Thus, this chapter complements and reinforces the information and guidance provided in this book.

Level of Intensity of Study in Law Courses Undertaken by Commerce Students Students studying commerce courses are required to undertake a number of law subjects. Subjects in introductory law, the law of business entities, and income tax are usually minimum requirements. Commerce students undertaking law subjects may confront a number of problems. All lecturers who have taught law subjects to commerce students have known students who put in many hours of study but whose grades do not reflect their effort. This chapter has two purposes. The first is to suggest strategies that will enable commerce students to study law subjects efficiently and, in turn, to optimise their exam performance so their hard work is reflected in their marks. Recognising the need for a strategy in studying a law subject is an important start to avoiding this problem because hard work by itself is not enough. You must develop your thinking ability and learn how to efficiently and effectively use your study and exam skills. The suggestions in this book will provide you with a good start but you must always look for ways of improving your method of study and exam techniques. The point I wish to underscore is that the methods and techniques contained in this book may not be taught by lecturers. The reason for this is that lecturers have a lot of material that must be covered in class. This may leave little time for the synthesis of important ideas and their application to hypothetical fact situations that you are likely to encounter in exams. If time permitted lecturers to teach study and exam techniques as well as the substantive law

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Many commercial law subjects are taught in both law schools and commerce programs. However, the versions taught in law schools usually take longer and cover the subject in much more depth. A course reading guide or course notes should provide you with a good indication of the level of detail required for a law subject taught in a commerce program. You will not generally be expected to go beyond this material in preparing for an exam. In preparing for tutorials or essays you may, however, be required to research and cover other material. If you are in doubt on this point consult your lecturer. The guidelines in Chapter 4 for law school students on preparing notes are equally applicable to the preparation ofnotes for law subjects studied by commerce students. Apart from landmark cases, however, it will generally be unnecessary to compare and contrast the views of several judges in a case. The sample examinatiq,.n questions and answers in Chapter 9 on contract law, company law and taxation law will be of interest to commerce students and the sample examination question and answer for commercial law at the end of this chapter is designed precisely for commerce students. The level of depth contained in the "above average answers" for the first three subjects is not expected from a commerce student; the level of depth in the above average answer in the commercial law exam would be expected. However, the commerce student should be able to identify the range of issues raised in the questions in the three exams for law students and develop logical arguments and

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fonn a conclusion in respect of the hypothetical fact situations in those exams.

The Search for Certainty A common mistake made by students in law studies is to search for the "right" answer. For commerce students, such an approach may be reinforced by the relative precision and right answers of other subjects they study. For many issues in law there is no single right answer. Law is a matter of opinion and the application of principles to different fact situations. There are always going to be numerous areas of the law in which the courts have not made a conclusive ruling. Even where there is a decision, a superior court may overturn that decision and possibly follow the views of dissenting judgments in an earlier decision. The High Court of Australia is not bound by its own precedents, and well-established doctrines may be altered over time. For example, in the Mabo case 1 the High Court rejected the previously held idea that Australia was unoccupied at the time of white settlement - the doctrine of terra nullius. Clearly, there is not always going to be a single right answer. Moreover, in many instances the examiner is seeking a consideration of the arguments both for and against each issue. In the context of a law exam, the odds of there being a "right" answer are further reduced because of the tendency of examiners to focus on areas of the law that are unclear or to give you insufficient facts with which to form a definitive conclusion. The aim is to see if you understand the principles well enough to recognise what facts are missing and what preliminary issues must be resolved before the question can be answered. The presumption that there is only one correct answer leads students to take a passive approach to learning. That occurs when the student transcribes lecture notes, does not think about what is being studied and then reproduces the information at exam time. Under this mistaken paradigm, the student does not think but merely recites the "correct" rule as the answer. This may be thought of as the "telephone book" approach to studying law. All the student has to do is know where to find the so-called right answer as one would look up someone's telephone number. However, in studying law a student must think and critically analyse issues and develop logical, well-written and well1

Mabo v Queensland (No 2) (1992) 175 CLR I.

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reasoned arguments. This dialectic skill must be developed throughout your studies. The telephone book approach does not work on a law subject exam, as it is premised on a false assumption - that there is one clear answer for each issue raised in a question. Moreover, as stated above, the examiner may not give you the facts necessary to make an unqualified conclusion.

Writing Exams for Law Subjects 1. Do not start writing your answer until you know what you are going to say My observations in the exam room are that as soon as students doing an exam are allowed to start writing the temptation to put pen to paper is too strong to resist. This may help to settle nerves or prevent a student from feeling that he or she will be left behind in the quest for marks. However, many, if not most, are failing to extract maximum marks in the process. Students often recite the facts and the question in the first two pages of an answer. It is common for examiners to state that for many students marks were not scored until the third or fourth page of an answer as the students unnecessarily repeated material in their answers. Better answers will have identified the issues and then organised them into a logical order before applying the principles to the facts. The better answers are not the longest answers but those that have succinctly and cogently argued the merits of each issue and suggested advice. In order to achieve this you must think about and plan your answer.

2. Make sure you allocate a significant amount of thinking time in the exam room In tertiary studies, students are required to think critically, analyse issues and question concepts in order to test their validity. This skill is vital in succeeding at tertiary studies and in your career. Some of you may feel that while this is encouraged in your studies, at exam time it is forgotten with the time limits placed on exams. When writing law exams, it is essential that you allocate a significant time to thinking and planning your answer. Thinking time allows you to prepare a wellorganised answer in which all the issues are identified and considered. The planning time will also allow you to determine how much detail

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you can go into in your answer. If a question raises five issues you will have to allocate your time to cover each of the issues. It should be noted that a better answer is shorter than the answer from a student who has identified the issues but who has not thought sufficiently about them before writing. A student who has grasped the principles in his or her study of a subject will often have a view on which way the law will or should develop. Stating such views in your exam answer reveals your command of the subject. This type of answer attracts higher grades. In professional practice, your client will expect you to have a view on trends in law. These comments are equally true for preparing essays, assignments and answers to tutorial questions. You must spend a significant portion of time planning your answer and developing a logical and coherent argument. It is also important to allow adequate time to revise your paper to ensure the clarity of your reasoning and to correct any errors. The planning stage allows you to read the question carefully, to identify the issues and to plan the answer. This is the vital secret to doing well in exams. In an exam about one quarter to one third of the allocated time for each question should be spent reading, thinking and planning. In an exam, where each question should be done in 45 minutes, spend at least 10- 15 minutes reading the question carefully, identifying the issues raised and planning your answer.

3. Read the question care.fully and address the question asked Law exam questions usually contain a series of detailed facts. Your task as a student is to identify and analyse the issues that arise out of the facts. Thus, the critical first step in any question, regardless of its form, is to identify the issues relevant to the question asked . You must first read the question carefully and understand what the examiner is asking you to do. If you do not answer the question, it is only logical that you will not score the marks. Examiners find it very frustrating to read the answer of a student who has failed to understand the question. This is a common error made by st;udents under exam conditions but is also made by students in essays and assignments. You must understand the task that the examiner has set for you. A trap some students fall into is to see that a certain issue is raised and then to pour onto their papers all they know on the topic with

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little regard for the facts of the question. This may involve re-writing material from an exam summary on the point. It is important to be careful when re-writing material from an exam summary in an exam as it may not be directly relevant to the question. Failing to identify the relevant issues reveals that a student does not understand either the question or the principle he or she is discussing. This will cause the student to miss other issues raised by the question. In some cases where the principle discussed in detail is of peripheral relevance, the student may fail to gain any marks at all for the answer. As stated at p 45 jot down any ideas and cases you think of while reading the question. This will be of value when you organise your answer.

4. Plan your answer After you have carefully read the question, you must plan your answer. You would not engage a builder to build a house without having a precise idea of what would be built. The same should be true for writing an exam answer. The house plan allows you to ensure that you get what you want and that all the essentials like a bathroom and kitchen are included. Exam planning is essential to identify the key issues and to organise your answer before you start writing. The plan will contain a list of the principles raised and their application to the facts. Where you are not given all the facts you will have to make assumptions to develop alternative lines of reasoning. In this situation, the examiner is testing whether a student has identified that one or more facts are missing and set out the alternative constructions based on the assumptions.

If you prepare an answer in exam time, write the plan on the inside cover of your exam book. This will allow for your easy reference and will give the examiner an illustration of your rea~oning. Do not, however, waste time by re-writing in exam books plans prepared during reading time. Most importantly, think through the consequences of what you intend to say before committing your thoughts to paper. You would not send a client the first draft of a letter without checking it carefully. Adopt the same approach with your thinking-instead of writing initial thoughts down, review them carefully and put them on the paper only when you're satisfied they're appropriate. Never put yourself in the position where you have to cross out something written only minutes

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before or, worse still, where you have to insert a note which indicates that upon further reflection you've realised the cases to which you referred earlier don't actually support the conclusion you said they did or the section in the legislation you cited doesn't actually apply where you initially said it did. It is very confusing for an examiner to try and follow an answer that has parts of a page crossed out with a series of arrows indicating in which order the examiner should read the sentences.

5. Apply the authorities and use reasoning A common mistake in an exam answer is for a student to state conclusions in their answer without providing reasoning. This will result in the student failing to answer the question as the examiner wants you to set out your reasoning leading to a conclusion. Remember, as emphasised many times in this book, there is inherent uncertainty in legal advice - some issues have yet to be addressed directly by a court and even where there are precedents, an authority of a lower court may yet be overturned in a later appeal and even the High Court can reverse previous decisions. It is not unusual for examiners to base exam questions on cases currently before an appeal court precisely because it is clear in these cases that both sides believe their competing arguments may ultimately prevail. Another common error is failure to set out the requirements of the authorities. Once a student has identified an issue, the student must then set out the requirements of the authorities. Common mistakes are the failure to set out the requirements of the provision or to only refer to one of the requirements. But do not recite authorities in detail without adequate application of the law to the facts. Some students quote legislation or judgments in detail when all that is required in an exam context is to identify the authority and briefly set out the requirements. All you need to do is adequately identify the requirements so that the examiner is aware that you are applying the appropriate authorities.

6. Make your answer easy to follow In most courses your examiner may be marking numerous exam scripts. You will assist the examiner by outlining in the introduction what you are going to do. The use of headings makes it easy for the examiner to follow the reasoning in your answer and will assist you to logically structure your argument. In addition, you may highlight

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a point in the answer by underlining. The headings in your answer should correspond to the main points in your exam plan. Your answer should lead to a conclusion. Headings will help you separate your answer into discrete issues. The importance of doing this is discussed in greater detail at p 49 under the heading "(iii) Do not answer in the form of long continuous essay or cursory point-form summary".

7. Do not indulge yourself in detailed argument where it is unnecessary The harder-working student needs to be careful to stick rigidly to the exam schedule and to not over-indulge himself or herself in an extensive discussion of the issues in the first few questions attempted and as a result fail to complete the exam paper. The examiner will have allocated set marks to each issue and once the appropriate issues have been identified and argued there is little point in dwelling on the matter to the detriment of the rest of your paper. If the law on an issue raised in a question is settled, set out the principle and apply it to the facts. On the other hand, if the law is uncertain you will be required to set out the competing constructions and suggest a conclusion.

8.

Ifyou run out of time in an answer

In pp 52-53, you are advised to allocate your time to maximise your marks. Students are strongly advised to follow this suggestion. If you are going to run over time, finish your answer in point form . If you are not moving at the pace that you planned then you may have to do this for each question. The point form answer is not ideal, but at least it tells the examiner what you thought despite the fact that you did not allocate enough exam time to answer the question in a more comprehensive manner.

If you practise answering old exam questions, you will develop skills in allocating your exam time so that moving to point form answers is the exception. This is part of your "match practice" in doing exams.

9. Match practice -

do old exam questions

As in sport, match practice is essential. I re-iterate the suggestions in pp 39-42 to practise answering old exam questions. This is one of the most important steps in preparing for an exam and developing

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your exam technique. Practice at answering old exam questions is as important as learning the subject matter itself. It allows you to become familiar with answering questions on the subject and to make mistakes and use them as part of your learning process. Students will always learn from a mistake and those made before the exam on old questions are never repeated in the exam room. If you prepare answers to old questions, you will develop your exam answering techniques. This will minimise the scope for problems such as not knowing how long it will take to write an answer and will allow you to display fully your understanding of a subject.

breathe deeply and slowly. Exhaling slowly is relaxing. Throughout this exercise you must imagine yourself in control and capable of taking on the challenge of the exam. If you do this exercise together with practising old exam questions, when you arrive to sit the actual exam, the exam environment will feel familiar. You should not expect the stress to be eliminated. Some stress is necessary but it will not be overpowering to the point of inhibiting your performance. Butterflies in your stomach will always be a part of exams.

Your results in a subject will to a large extent be judged on what you do in the exam room. Practice answers may be prepared at two levels. First, you may write a full answer as you would if you were sitting the exam. This will enable you to see what you can complete in the allotted time. Secondly, you may practise all the steps in answering up to the writing of the answer. This will hone your skills in identifying issues and planning your answer. This exercise may even be started once an issue is completed in class. Practice at this level will allow you to attempt a large number of questions and the plans that evolve from this practice may form the basis for discussion with either other students or lecturers. The skill in writing exam answers is as important as understanding the principles and issues in a particular subject. As noted on p 42, most of your fellow students in the exam room will be attempting an exam answer in that course for the first time! If you've practised developing answers to old questions, you're starting off with an enormous advantage over most in the class.

11. Do not use authorities incorrectly

10. Picture yourself in the exam room All students feel tension and stress when wntmg exams. This is normal - it is the way your mind is alerted to a task and will usually ensure that you are able to do what is required. However, some students become so stressed in the exam room that they are unable to think clearly. These students are unable to perform to the best of their ability. One way of lowering the tension of the exam room to tolerable levels is to visualise yourself in the exam room long before the exam. Create in your mind the atmosphere of the exam room. Begin outside the room and imagine yourself going into the hall and finding your exam desk. Go through all the details such as setting up your materials. While creating this scene in your mind you should

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A common mistake of students is to use authority incorrectly. The building blocks of law are decided cases and statutes. These are the only primary authorities. Textbooks are not authority and should not be used as such. Secondary materials such as texts - or, in taxation law, taxation rulings and taxation determinations that show the views of the Commissioner - can be used, but they cannot be cited as authority to prove a particular point is right. An above average answer on taxation will set out a student's views based on the authorities and then may set out the views of secondary authorities such as texts or rulings or determinations issued by the Commissioner of Taxation. If the views in the secondary materials are contrary to the views of the student, a good answer should show how the approach advocated by the secondary materials may not be supported by the primary authorities. For further discussion of this point seep 62 under the. heading "13 Do not cite secondary sources".

Reading Texts, Cases and Materials Gears

Use Reading

Law is a field of study that requires large amounts of reading and even the best students must do the reading. In reading for law studies, students should use some techniques to maximise efficiency. In reading, as with riding a bicycle, a student must use gears. Do not read all the material in your studies at the same speed. You begin fast and move down to slower speeds. Skim-read where you are searching for relevant material. This is your high-speed gear that allows you to cover a lot of ground quickly.

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In this exercise you should mark (only in your own books) the areas that contain relevant material. The high-speed reading gear should also be used to preview material that you are about to read at a slower speed. For example, if you are going to read a case, glance at each page to give you a notion of what is contained in the case. The first sentence in a paragraph tells you the subject of the paragraph. By glancing at the first sentence of each paragraph in a judgment you will be given an idea of its structure. In this exercise you will be able to note the length of the case and the assistance the judges may have provided such as headings. After previewing the case you may then proceed to read at a slower pace. The next speed is your middle gear which is probably the pace at which you would read a letter from a prospective employer. This speed enables you to move at a reasonable pace to glean the ideas from what you are reading.

Chapter 10 - Study Strategies and Suggestions for Commerce Students

• Most important of all, plan your answer. When you begin to write an exam or essay you must know what your answer will look like before you start. If you have 45 minutes in an exam per answer, spend at least 10-15 minutes planning and organising your answer. This thinking time always leads to better answers. • Practise answering old exam questions. It is your "match practice" and allows you to develop exam techniques. If you practise past questions, the questions you encounter in the exam room will look and feel familiar. • When you read material for law studies, use reading gears. Skim read material as either a preview or scanning exercise in looking for relevant material. Use medium speed for previewed material and slow speed for complex and difficult material.

Finally, you will use a slow gear for dealing with very complex or difficult material. At times, the reasoning in judgments is difficult to follow. This may require slow reading and re-reading in order to understand the principle being established and applied to the facts in issue. This speed is only to be used after you have determined where the information in a case is located. In this section I have referred to reading a case but the technique should be used in all your reading. Many students read at the same pace for all their reading. The skim technique allows you to ensure that your investment of time in reading the material will reap maximum dividends.

Summary • Commerce students do not study law subjects to the same degree of intensity as law students. Therefore the sample answers in this book outside this chapter most likely contain a greater degree of detail than is required of commerce students. • Students must not search for certainty in all their essay and exam answers. Often there will not be a "right" answer because the area of the law is uncertain or the question contains insufficient detail. You must be able to spot the issues and cogently argue the constructions available on the facts.

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Business Law: Average Answer

BUSINESS LAW Pearl Rozenberg Sample Question A customer, P, purchased a bottled liquid product named XX to kill citrus beetles that had invaded her lemon tree. Citrus beetles are particularly nasty bugs that eat leaves and can spray a toxic spray. The bottle of XX was made of clear plastic, with a red top. The label described the product and gave instructions. The instructions were very clear that care must be taken to avoid contact with eyes. If contact was made, the eye should be rinsed immediately with a great quantity of cold water for at least 5 minutes. P went out and poured XX into a sprayer and commenced spraying the lemon tree and the citrus beetles. She did so according to the instructions wearing sunglasses to ensure that no product XX floated back to her eyes. A citrus beetle from above squirted and hit P's eye. As the spray came from above, the glasses did not stop the squirt. Citrus beetle spray is toxic and P's left eye was damaged. Dismayed and in pain, P called a neighbour to drive her to the hospital. While waiting she poured the rest of the spray down the drain and poured a kettle of water over it to ensure that it all went away. Unknown to P, you should not pour XX down a drain. When the product was combined with water in a confined space such as a drain, pressure builds up to such an extent that a stream of the mixture of water and XX will spray up out of the drain. The mixture did erupt out of the drain hitting P's other eye. No longer able to see, she was not able to flush her eye for 5 minutes with water. Her right eye was damaged.

Advise P on the basis of all causes of action studied in this unit. [Suggested time: 1 hour and 20 minutes plus 10 minutes reading and noting time.} (Noting time means students can make notes on the question paper but cannot write in the answer books. Use noting time to plan your answer.)

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P has actions arising from two injuries to consider: injury to her eye when the citrus beetle squirted her ("first eye injury"); injury to her eye resulting from the spray of XX from the drain ("the second eye injury").

1. First eye injury (a) Action against the seller of XX under the Sale of Goods Act 1923 (NSW) The Sale of Goods Act 1923 (SGA) inserts certain conditions into contracts relating to the sale of goods. P has purchased XX. So there is a seller who has transferred XX to P for a price (section 6(1) SGA) and the provisions of the SGA apply. Section 19 of the SGA can imply a condition that XX is reasonably fit for the purpose killing citrus beetles if P has expressly or by implication advised the seller of XX of the particular purpose of her purchase. The problem does not indicate whether P advised the seller or by her conduct implied to the seller that she required XX for the purpose of killing citrus beetles on her lemon tree. If she had done so and P relied on the skill and judgment of the seller of XX when she purchased XX and if she has bought XX from a seller who sells pest control products to consumers, section 19(1) of the SGA implies a condition into the contract that the goods are fit for the purpose that P has advised. The same condition is implied if P has bought XX in a sale by description (section 19(2) SGA). If P can't rely on section 19 because she oon 't establish the conditions of section 19(1) or 19(2), section 64 of the SGA makes it easier for P to establish that the condition of merchantable quality is implied if the contract is a consumer sale. Section 62 of the SGA defines a consumer sale as goods of a kind normally bought for private use or household consumption. IfXX is marketed and sold as a consumer product not a commercial product, the contract for sale is a consumer sale and the condition that the goods are of merchantable quality is implied into the contract. If P

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can establish that the goods are not of merchantable quality the seller has breached the contract. XX is not of merchantable quality if XX is not fit for the purpose that consumers commonly use it for as is reasonable to expect having regard to price, description of the goods and other relevant circumstances (section 64(3) of the SGA). IfXX is used by consumers to kill citrus beetles in backyard gardens, sold in supermarkets or such stores, priced for a consumer, sold in consumer quantities rather than commercial quantities, marketed to consumers, these factors will determine that the contract for sale of XX to P is a consumer sale and section 64 of the SGA will apply.

In that case there has been breach of contract by the seller, as XX is not fit for the purpose of use by consumers to kill citrus beetles. P may claim that she used xx in accordance with the instructions and the instructions are deficient. The instructions should have required her to wear goggles or other full eye protection. XX is not fit for killing citrus beetles in a consumer environment where full eye protection is not used. The seller will argue that there is no breach of contract as XX is suitable for use to kill citrus beetles in backyard gardens. It is the instructions that P is complaining about, rather than the product. The seller will also argue that the cause of her eye injury is a citrus beetle, not XX. At the time of sale the product was not deficient. In Crago v Multiquip Pty Ltd, the Court found that after purchase there had been interference with the goods and the purchasers had not established that the machine was deficient at the time they purchased it. Even if P can establish a breach of contract she will be entitled to damages for breach of the contract but that will not compensate her for the damage to her eye. (b) ACL 4-2 -Actions against manufacturers and importers of goods The Australian Consumer Law (ACL), provides for remedies by a consumer against a manufacturer or importer of goods. Generally the ACL provides remedies to a consumer against a corporation. This is because the ACL, being Commonwealth legislation, must be based on one of the Commonwealth Constitutional powers. The manufacturer or importer of XX had to be a corporation if P can consider the ACL. If it is not a corporation, P must find another Commonwealth

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constitutional power, such as the external affairs power if there is an importer of XX.

Manufacturer If P can establish there is a breach of Part V Division 2A of the ACL, P has a broad range of corporations she can consider taking action against, relying on section 7. If, for example, she is unable to identify the manufacturer or the manufacturer is overseas, she can consider various parts of section 7 that broaden the definition of"manufacturer". A corporation that holds itself out as the manufacturer, the corporation that uses the brand name XX, the supplier such as the wholesaler of XX can be deemed to be the manufacturer of XX and P can take action against one of them. IfXX is imported section 7 allows the importer to be deemed the manufacturer. If P sues the supplier, for example under the expanded definition under section 7 and if she is successful, the supplier can recover any damages paid to P from the manufacturer of XX (section 274).

Section 54 -

unmerchantable quality

Section 54 provides for actions in respect of goods of unmerchantable quality against the manufacturer or the importer. Like section 64 of the SGA, section 54 defines goods not of acceptable quality as those that are not fit for the purpose that such goods are commonly bought as is reasonable to expect having regard to price, description of the goods and other relevant. circumstances. However the guarantee is restricted to goods "ordinarily acquired for personal, domestic or household use or consumption" (section 3). If XX is a product sold for use by consumers to kill citrus beetles in backyard gardens, P will be able to consider the consumer guarantees. However if she has purchased a product that is sold for commercial use, Division 2A of the ACL is not available to her.

Section 55 -fit/or purpose Section 55 provides for actions in respect of goods which are not fit for the purpose required. If P had asked the supplier for a product that killed citrus beetles and she relied on the supplier's recommendation in purchasing XX,

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In Jillawarra Grazing Company v John Shearer Pty Ltd the purchaser had complained that the airseeder did not work properly with a hydraulic motor. However the Court decided that the product was fit for the purpose that the purchaser had made known at the time of purchase - an airseeder that could conduct airseeding operations at 3 tons per hour. The purchaser's complaint was not related to the purpose that had been expressed at the time of the sale. If P asked for a citrus beetle spray, she has been provided with that. Her concern is with the way that XX is used and her claim under section 55 would not be successful.

Section 7 provides the extended definition of "manufacturer". This means that P can consider actions against the supplier, the importer or any corporation that holds itself out as the manufacturer of XX (see discussion above). Part 3-5 does not restrict the type of goods which are subject to the provisions of Part VA, so P can consider Part 3-5 no matter what type of goods XX happens to be. Section 9 provides some assistance in determining whether the product is defective and requires consideration of all the relevant circumstances. Section 9 defines a product as defective if it is not safe as persons generally are entitled to expect. P has used XX in accordance with the instructions (using sunglasses) but has suffered injury. P can argue that the relevant circumstances include the instructions supplied with XX which were defective in that they did not warn her on full eye protection when using XX. The manufacturer may argue that the citrus beetle caused the first eye injury. P can respond that when using XX she must stand close to the tree which has citrus beetles. In that case it is reasonably foreseeable that she will be squirted in the eye by a beetle unless she has full eye protection. Glendale Chemical Products v ACCC is a case where the instructions on the label of the product were not sufficient. There was no warning about using the product with hot water. Similarly the label on XX should have warned P to use full eye protection as sunglasses are inadequate. Manufacturers have strict liability under Part 3-5 of the ACL. If the goods are defective the manufacturer must compensate anyone who is injured as a result of the defect. An action under section 138 is P's best option.

Trade Practices Act 1974 Part 3-5

If successful P will be able to recover her medical and other losses as a result of her eye injury.

section 55 of the ACL gives a guarantee that XX is fit for that purpose. The product XX is fit for that purpose.

Liability under Section 54 The same issue arises for P under section 54 ACL as under the SGA. That is, it is not the product itself that is unfit but any deficiency is rather with the instructions. To succeed in her action, P must show that the deficiency in the instructions on eye protection meant that XX is not of acceptable quality. Whether or not her claim succeeds depends on whether the Court agrees that the instructions are part of the "goods" and the omission of a warning on the product results in the product being unacceptable. As a further problem for P, section 54 provides that there is no liability if the cause of the goods not being of acceptable quality is due to a cause independent of human control. The first eye injury was caused by the citrus beetle, not XX.

Liability under Section 55

Part 3-5 of the ACL is concerned with the liability of importers and manufacturers for defective goods. Once again P must identify an importer or manufacturer that is a corporation. Manufacturing includes "produced, processed and assembled" (s 7) so even if the chemicals of XX are blended in Australia or bottled in Australia, XX had been "processed" or "assembled" in Australia and the corporation which undertook that process has "manufactured"

xx.

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2 . Second eye injury (a) Sale of Goods Act 1923

P could consider the SGA. See discussion under (l) above (first eye injury). The second eye injury has a more direct relationship to XX than the first eye injury. The direct cause of her second eye injury is the effect of XX contacting her eye.

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However her damages would be for breach of contract and may not cover her medical expenses.

(b) ACL 4-2 -Actions against manufacturers and importers of goods

See discussion under(!) above (first eye injury).

unmerchantable quality

See discussion under(!) above (first eye injury).

Section 55 - fitfor purpose See discussion under (1) above (first eye injury).

Liability under Section 54 The manufacturer may also claim that the cause of her second eye injury was initially the spray of the citrus beetle which was a cause independent of human control (s 54). Section 54 provides that if the goods are not of acceptable quality due to the act of default of another person there is no breach of section 54. The manufacturer may claim that P has failed to follow the directions and when her eye came into contact with XX she did not wash her eye with a great quantity of cold water. Consequently, the cause of her second eye injury was a combination of the citrus beetle spray and her failure to wash her eye when XX hit her other eye. It was not that XX was unacceptable due to the failure to warn of mixing it with water in a confined space. The manufacturer would also claim that P 's complaint is not related to XX itself but the failure to include a warning on the label. The same outcome as described above arises - that is, whether the Court would agree that the failure to put a warning on the label means that XX is of unacceptable quality.

Liability under Section 55 If P has asked for a product to kill citrus beetles in her backyard lemon tree she has been provided with a product that fits that purpose. If she asked for a product that was safe to use in a household, XX does not appear to fit that purpose and she may have an action under section 55

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because when XX is used in a household near drains and water it becomes unsafe. It is not fit for the purpose she requested. The onus is on P to prove that she made known that purpose to the supplier and she relied on the recommendation of the supplier in purchasing XX.

Part 3-5

Manufacturer

Section 54 -

Chapter 10 - Study Strategies and Suggestions for Commerce Students

P may seek compensation for the second eye injury from the manufacturer of XX under section 13 8 of the ACL if she is successful in establishing that the product has a defect causing her second eye lllJUry. See discussion in (1) above (first eye injury). Section 9 refers to the marketing and physical attributes of the goods in determining whether the goods are defective. The manufacturer may claim that all of the relevant circumstances need to be considered. The manufacturer can refer to section 9 and point out that the product is marketed as a chemical insecticide and as such consumers of such products can expect that the product needs to be handled with care. It has a red top signifying danger or risk, a clear warning to avoid eye contact and instructions for a remedy if eye contact occurs. In these circumstances the product is not defective. This is not a case like Glendale Chemical Products Pty Ltd v ACCC where the product itself was designed to be put in drains. The manufacturer would argue that it is not foreseeable that XX would be put down a drain. However the Court in the Glendale Chemical Products case said that the warning was inadequate because it "was inadequate to bring home to an ordinary reader the risk of being injured in the way in which Mr Barnes was injured". The Court expects a detailed and broad warning, perhaps particularly where there is risk of severe injuries. The nature of the defect in this case is severe with XX causing injury when it is mixed with water in a confined space. Persons generally wou ld not expect such a severe reaction when XX came into contact with water in a confined space. There are many such circumstances in a consumer's home - kitchen, bathroom, laundry and external drains with water taps are a common feature of homes. The product does not apparently have any warning against pouring the product down the drain. It is foreseeable that persons generally may flush the product down the drain in order to dispose of excess product or as in P's case to protect against risk to the more vulnerable such as children or pets.

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Chapter 10 - Study Strategies and Suggestions for Commerce Students

The instructions do provide for the event of eye contact but if eye contact is caused by the defective product, instructions won't save the manufacturer from liability. Nor will the fact that the citrus beetle was the cause of the first eye injury.

The manufacturer of XX was "Manufacturer", an Australianowned and operated business; the product was either made or imported by Manufacturer so that Manufacturer is a manufacturer under section 7 ACL; XX's product label only stated "eye wear should be worn". It did not specify goggles or any additional protective equipment; XX's product label did not mention the risk of being squirted by citrus beetles or provide any recommendations to protect against the potential harmful side effects;

Contributory acts or omissions The manufacturer may argue that it is P's contributory actions in not following the instructions by failing to rinse her eye with water following the second eye injury.

In the Glendale case the Court agreed with Emmett J's reasons for rejecting any contributory negligence. Emmett J found that the way that the injured person had handled the chemicals was not unreasonable and there was no contributory negligence. It is not unreasonable for P to pour unused product down the drain. Manufacturer not known If P can't identify the manufacturer or the manufacturer is not subject to Australian jurisdiction section 9 provides that the deeming sections apply. This means that P can claim damages from the apparent manufacturer of the corporation that holds itself out as the manufacturer or applies its mark or brand to the product. If the product is imported the importer can be liable (s 7). If P can't identify the manufacturer she can issue a notice pursuant to section 147 on the supplier of the product and require the supplier to provide particulars of the manufacturer or the supplier of the product to the supplier where P purchased the product.

Section 138: loss by injured individual If successful in her claim under section 9, P can claim compensation for the losses caused by her injuries. These include costs of medical treatment and loss of wages.

XX's product label did not contain any warning regarding the risks of disposing left over product by pouring it down a drain; and XX's product label did not contain any warnings regarding the reaction of XX with hot water. The advice provided considers P's injuries as two separate events, the first relating to P's left eye being damaged due to being squirted by citrus beetle spray while in the process of applying product XX, and the second P's right eye being damaged as a result of P disposing of left over product down a drain. Being two separate events, each needs to be discussed separately.

A. Left eye

i. P against Manufacturer

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Defective Goods Misleading and deceptive conduct Consumer Guarantees Negligence

ii. P against Seller Defective Goods Misleading and deceptive conduct Consumer Guarantees Contract Negligence

Business Law: Above Average Answer B. Righteye In addition to the background facts provided, this advice is also based on the following assumptions: XX was purchased by P from "Seller'', a retail hardware store;

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i . P against Manufacturer

Defective Goods Misleading and deceptive conduct

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Consumer Guarantees Negligence

ii. P against Seller

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Defective Goods Misleading and deceptive conduct Consumer Guarantees Contract Negligence

This will make the answer impossibly long, as shown from the outline above. In practice each would be discussed separately but recognising the exam situation and limited time, I will discuss the actions available to P against (1) Manufacturer, and (2) Seller, and differentiate where the facts relating to each eye differ.

1. P against Manufacturer (a) For defective goods Part 3.5 ACL provides strict liability for manufacturers and importers of defective goods that cause personal injury or property damage. Under s 9 goods have a defect if they are unsafe - " if their safety is not such as persons generally are entitled to expect". Whether something is defective is an objective test based upon what the public at large is "entitled to expect" (ACCC v Glendale Chemical Products). In determining the extent of the safety of goods, regard is given to all relevant circumstances including marketing, packaging and warnings.

Is XX a defective good? XX is defective since it is not as safe as could be expected. First, for a product that must not touch the eye and needs 5 minutes of rinsing if contact is made, the warning that eyewear should be worn is inadequate. It should have specified safety goggles should be worn. It does not matter that on the facts it was beetle spray that hit the left eye and not product, the warnings, packaging and so on were not sufficient to warn about safety risks. Second, any product that explodes if mixed with water in an enclosed space does not meet safety requirements. As with ACCC v Glendale Chemical Products, the central issue in this case relates to the adequacy of the instructions and warnings; in

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particular there was no warning of the dangers involved in using the product safely or with how to dispose of it safely. Both our case and Glendale involved pouring product down a drain and being hit by the resultant explosion which caused damage. The label on both products did not advise warning to not use hot water, that protective gear, goggles, etc should be worn or that the product could erupt. P, as with the victim in Glendale, used the product for the purpose for which it had been marketed. Disposing of left over product is as much "use" as is using the actual product so P has used the product as marketed. Given that Manufacturer knew that the product reacted with water in enclosed spaces it is sufficiently known that proper warnings should have been disclosed. The lack of warnings means the product is considered defective goods because its safety was not such as persons generally are entitled to expect.

Remedies As XX is "defective goods" P could sue Manufacturer under s 138 for the loss suffered as a result of her injuries. The preconditions for remedy listed in the section must be met. XX is defective goods but Manufacturer must: supply the goods "in trade and commerce" (element satisfied - Manufacturer makes and sells goods to other suppliers or sellers); have "supplied the goods" (element satisfied - they supplied the goods to the retailer Seller or to intermediate suppliers who resupplied to Seller); have manufactured XX (element satisfied XX).

they manufactured

In addition to the above: because of the defect P must have suffered injuries P suffered two injuries and the differences between the injuries may affect recovery. P's right eye was injured by the product itself. Liability for loss requires injury due to the safety defect. In this case, the improper labelling and warnings about disposal and use directly caused the injury. P can recover for damage to her right eye. Whether P can recover the damage to her left eye is not as clear cut. P was hit by beetle spray. She was hit while she was using XX but she could have been hit by beetle spray just as easily when looking up to

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Chapter 10 - Study Strategies and Suggestions for Commerce Students

pick a lemon or indeed walking past the tree. Additional facts as to whether spraying caused the beetle to react are needed. On the fact as given, the act of spraying XX did not cause the beetle to spray her and so it was not the safety defect that caused the injury.

product with a warning label indicating the dilution requirements and the necessity to wear rubber gloves with prolonged use. The key determinant in the dispute related to the inadequacies of the label and its capacity to mislead.

Manufacturer is liable for the right eye injury unless they can rely on any express defences in section 142. The onus to establish this will be on Manufacturer; however based on the facts and similarities to Glendale Chemicals it will be difficult for this defence to be easily established. P could seek compensation under s 140 for any domestic goods which were also destroyed or damaged because of the defective goods. For example P could seek compensation for damages to the clothes she was wearing or to repair the sink and plumbing.

The court found that the conduct of the appellant in respect of the labelling was such as to be misleading. It was held that the label's sole instruction on safety directed the wearing of protective gloves only with prolonged use of the cleaning product yet even short use was a problem such that short-term use of the product, without protective gloves, would have an ill effect on the user. The capacity to lull a user into a false sense of assurance was misleading. P was led into a "false sense of assurance" by the label of XX that her sunglasses would protect her from eye damage while using the product - unaware of the risk posed of being sprayed by citrus beetles, a reasonably foreseeable hazard. The fact no disposal statement was contained on the product would also be misleading and deceptive conduct.

P will recover damages for the loss caused. The courts may also make an order to restrain Manufacturer from supplying to any person XX, unless each container bears a label containing certain instruction and warnings. The Minister could also publish a notice to the public warning of possible risk involved in the use of XX (ss 129,130). P must commence action for damages within three years from the time of becoming aware (or ought reasonably to have become aware) of the alleged loss. In addition action must be commenced within 1O years of the initial supply of the defective goods(s 143).

Liability under s 18 is strict. P may claim damages under the damages section (s 263) as long as P can show that the damage was caused by the misleading conduct. In this case, the lack of warning on the label caused injury to the right eye and potentially the left eye. ( c) In consumer guarantees

(b) For misleading practices P may also take action against Manufacturer under s 18 of the ACL for their inadequate labelling of XX. While the technical requirements of trade and commerce and "engage in conduct" are met (discussed above), misleading and deceptive practices may not be appropriate. Something is misleading if it would mislead the target group to whom the product was marketed. Everything on the product was accurate. There were some bits missing from the warnings but everything on the label was accurate. Would what was there - and what was missing - mislead a gardener? The target audience for XX would be domestic gardeners aged between 30 and 60 years of age of both sexes. Would the "ordinary person" within this target audience be misled by the inadequate warnings on the product label concerning the risk of injury? Or would someone in this target group automatically know to wear safety goggles and how best to dispose of chemicals?

Hampic Pty Ltd v Adams assists in determining if our facts could be regarded as misleading or deceptive. Hampic distributed the cleaning

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The ACL provides consumers with guarantees. P is a consumer since the value of XX is under $40,000 or in any event, XX is used for personal or domestic purposes. Section 54 is the most relevant guarantee. "Trade and commerce" is met here since Manufacturer makes and sells products. "Supply of goods" is met because they supplied the goods to the retailer Seller or to intermediate suppliers who resupplied to Seller without any auctions. Since these conditions have been met, the consumer guarantee in s 54 operat_es and all goods supplied must be of acceptable quality. Acceptable quality requires the goods be fit for the purpose commonly supplied, safe and durable having regard to any description, the price paid and other relevant circumstances. Is XX of acceptable quality given the inadequate label warnings, while recognising the quality of the actual product (ie, its effectiveness) is not in question? XX is fit for the purpose commonly acquired since it kills beetles. Acceptable quality, however, also includes durable and safe. XX is not safe, especially if poured down a drain. A product must be safe for

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consumers both in use and in disposal after use. The lack of warnings about disposal and safety goggles means that XX does not meet the level of acceptability required. A cause of action under this provision is possible and should also be pursued. P could recover the damages she suffered - the costs of care for her eye. ( d) In negligence P could bring an action against Manufacturer in negligence. P will argue that the harm she suffered was foreseeable to Manufacturer, was significant, and that the reasonable person in Manufacturer's position would have taken precautions (Civil Liability Act 2002 (NSW) (CLA), s 5B(l)). The "Shirt calculus" would be applied. P would argue that the harm suffered was probable because it was foreseeable that spray could get into an eye without proper eye wear and that most people will dispose of the excess product by pouring it down the drain. It is only justifiable to not take action to minimise risk if the reasonable person who is careful of safety in those circumstances would think it right to neglect it (Wagon Mound 2). The gravity oftbe harm is great because consumers' eyesight is affected. Action to warn against the potential harm would have been practicable - when the magnitude of the risk can be balanced against the cost of preventing it (better labelling), it should be done (Woods v Multi-Sport Holdings). In this case, it is clear that Manufacturer owes a duty of care to consumers. Was sufficient warning given that could remove the duty of care? In this case, if a warning had been placed on the bottle about goggles would the harm to the left eye have arisen? P was sprayed by a beetle and unaffected by the use of XX. Companies do not warn about every known risk and advise people to wear safety goggles at all time. In respect to the damage to the right eye, a label warning or listing how excess product should be disposed of would have mitigated the harm for minimal cost or inconvenience. There is social utility in placing a warning on the pack because broader society could be protected from the harm suffered. A warning about proper eyewear and disposal methods would have assisted and the lack of these warnings show that insufficient precautions were taken. While there may have been a duty of care, that care is breached if the reasonable person would have taken precautions against the risk. The lack of adequate labelling is a breach of the standard of care required.

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This case is regarded as a failure to warn case. What would P have done if not for the omission of good warning? (CLA s 5D(3)). This matter is to be determined subjectively in light of the circumstances (CLA s 5D(3)(a)). P would need to show that she would not have used XX as she did, nor dispose of it as she did. Taking a reasonable person approach, would a reasonable person have poured the excess down the drain if there were instructions to the contrary? P followed all directions carefully, even wearing eyewear. P would have followed all instructions and so P would not have disposed of the excess as she did, had there been a warning. P should be able to recover under the CLA. Causation may prove an issue for the left eye but there is clear causation for the right eye.

2. P against Seller (a) For defective goods The defective goods provisions require a manufacturer, as defined in section 7. A manufacturer is a grower or producer, someone who bolds themselves out as manufacturer or the person who imported goods manufactured elsewhere to Australia. Seller does not fall into any of the categories in section 7 and so Seller is not liable under the defective goods provisions in part 3-5 of the ACL. (b) For misleading conduct While Seller did not make or label the products, the ACL does not limit liability to the manufacturer. Section 18 simply requires all people, in trade and commerce, not to engage in conduct that is misleading. Since XX was misleading - see discussion in ( 1)(b) above - and Seller is a person, in trade and commerce (selling things) Seller could be liable. However, Seller merely sold the product, without adding anything to the transaction. Even if a contravention of section 18 is found, P could not recover any damages. P would need to show causation, that Seller's misleading conduct caused the damage. The damage was due to poor labelling by Manufacturer so that Seller would not be liable for any damages to P. (c) For contract. There is clearly a contract between P and Seller since P bought the XX from Seller. In order to recover, P must show that a term was

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breached. The exact terms of the contract are not known. Implied terms could be used; however the statutory guarantees will more than cover the situation. Statutory guarantees can be claimed from the retailer - Seller. The discussion about acceptable quality in (1 )( c) above applies to Seller, just as it did to Manufacturer. Seller cannot refuse to help P by sending her off to Manufacturer. If a retailer has to incur expense to meet a claim, the retailer has a right of indemnity against the manufacturer (s 274) so Seller could recover any payments from Manufacturer. Remedies that P could seek include repair, replacement or refund although P would be seeking more than this. Compensation for damages is available and P would seek to recover her costs sufficient to place her in the position she would have been in if the products or services had done what they were supposed to. XX being unsafe would make the breach of the guarantee a major breach and so damages are available. It is not a defence for Seller to state it was not his fault. XX was a product he sold and so he can be sued. (d) In consumer guarantees This discussion is the same as the discussion for contract. ( e) In negligence The discussion will be similar to the negligence discussion for Manufacturer in (1 )( d) above but the duty discussion will be different. Seller is bound by a duty as Grant v AKM established.

3. Conclusion P can sue both Manufacturer and Seller. P should sue both in all causes of action possible.

Business Law: Examiner's Comments Business law units provide an overview of legal areas for students not undertaking a law degree. As such far more is covered in one semester than would be covered in a law class but some of the extreme detail is, of necessity, not covered. Student answers need to cover all the basics and key principles as well as any cases or legislation covered.

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Both answers above do meet the standard required for a Business Law unit of study. The average answer is a high pass to mid-credit paper. The above average paper would have scored close to full marks for the exam. Both answers recognised that P could sue both Manufacturer and Seller. Both answers recognised that P could use different causes of action. As such both have met the minimum requirements for an answer. An answer that only considered contract for instance, leaving out the other causes of action studied would not have been able to pass. This brings the first major point to be considered - ensure that you are sufficiently prepared and have a grasp of the entire course. Leaving out a major point is the most frequent reason for poor performance. If an answer only answered half the question, leaving out causes of action, it will only score half marks. This is frustrating since the parts that are written are generally well-written and analysed yet the mark given is low. Second, make sure that the entire question is answered and all parts of an answer are given. In law, as the marking guide is planned, all parts of the answer will have been given marks. Leaving out a part - or parts - simply means that zero marks are assigned to that part. It is just as important to show that you considered something but concluded that it would not work, with the reasons given, as reporting on the successful causes of action. If running out of time or word limit in assignments, do not just handle some of the answer. Shorten your answer but ensure that all parts are covered. There are key differences between the answers that justify the difference in marks. The above average answer covers all the issues - not just the main ones. It has covered the obvious issues but then has handled the smaller issues. It has also taken the answer and stated where facts are missing but then completed the analysis anyway. The average answer did not cover all the actions - it m1ssed negligence altogether. In areas covered, the discussion was not as full, or missed the nuance raised by the facts, for instance realising that causation was different for each eye that was injured. An answer cannot just be conclusions. You must "show your working" by tying the facts to the law allowing a conclusion to be reached. Both answers did analyse the facts, included law and came to conclusions. This moved both papers into the high pass/low credit zone. This brings the third major point. A legal answer such as this one requires legal analysis. Too many students are able to locate the points

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that need to be discussed yet do not write them up adequately. A list of issues to discuss will not gain very many marks nor will an answer that lacks proof - even if the conclusions are correct.

an accurate summary of the law. Most cases where students use the wrong law are due to inadequate exam preparation - which you should avoid.

Marks are gained for the analysis itself and you need to ensure that your writing and analysis meets the standards of legal analysis required. The discussion of defective goods - whether the goods were defective - shows the difference well. The above average answer tied the law to the facts and reached a supported conclusion. The details of the facts were carefully analysed and compared to both the legislation and cases which allowed the supported conclusion to be reached. The same discussion in the average answer serves as contrast. There is little law and it is not well tied to the facts so that the answer is not well supported.

The above average answer contained no unnecessary information. You do not need to give the facts of the case you may be using as proof of the law. It is generally enough to cite the name of the case and perhaps what law it established. Giving the facts will just take extra time without scoring any extra marks. More importantly, however, the discussion in the average answer of the Jillawarra case, for example, lost time since this involved additional sentences written that scored no marks. Law exams are always under time pressure and so you need to ensure that your answer is as efficient and "point scoring" as possible in order to complete it in the time available. The consumer guarantee sections of the above average answer show the law discussed without any extra detail and then immediately tied to the facts to reach conclusion. The average answer in the consumer guarantee sections, which fust essentially listed the legislation and then went back and discussed it, wasted time and effort for no increase in marks.

At all times, the analysis in the above average answer has been complete. The average answer at times just states the law and the conclusion with little facts to draw it together. The consumer guarantee section in the average answer contained little else other than law and so while correct, will not score that many marks. The above average answer did not waste time on statements of the law but tied the law the facts to reach conclusions. The above average answer always used the correct law. The law itself does change and in the areas typically covered in the introduction to business law units, the change has been occurring more quickly than normal. Negligence has undergone change from being common law to legislatively controlled by the Civil Liability Act 2002 (NSW) (CLA) and the Trade Practices Act has been superseded but the Australian Consumer Law (ACL). All textbooks have changed but sometimes students take the temptation to use old editions of textbooks since they are cheaper. This needs to be avoided. Even worse, getting hold of a friend's notes and not checking that they are five years out of date is setting yourself up for a problem. The average answer based one major part of the answer on the old law with the discussion on implied terms. Apart from the loss in marks, it shows a lack of learning. The analysis itself in the average answer, while based on incorrect law, is adequate. The error in law would have been noted and marks would have been lost but after that the answer would have been read and some marks given for analysing, well enough, the wrong law. While marks were given, it is best to avoid this sort of error. Spend the time analysing the correct law in order to maximise your marks. And spend the time before the exam really studying and preparing

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You should aim to provide a well-structured easy to read answer. The fact that law exams always seem to be short of time and you never finish them does not mean that you start writing as soon as you raise pens and just keep on going. You are better off spending some time planning your answer and making sure you cover it in a logical easy to follow style. After all, an easy to read answer is more likely to score well since the marker can follow arguments and is aware of all points covered. The above average answer made sure to outline what would be covered in the answer. This was part of the planning process but then included in the actual answer so that the marker knew what to expect. The use of headings throughout the answer is also useful to markers since they are reminded of what is being answered. The above average answer always told the marker what to expect and then proved it, making it a better answer and also easier to mark. The average answer did have some structure - it dealt with each eye separately. And there were headings. The flow however was not logical. When thinking about structure and headings your goal should be that if all the body text was removed, leaving just the headings and subheadings, they would give an accurate picture and summary of the answer. The above average answer allows this. The average answer, with a lot more headings, does not, meaning the structure the student used was not well planned.

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Throughout this analysis of the answers, you will note that no mention of whether the answer was correct or not has occurred. Correct and incorrect do not really apply to law answers. A proven answer will score marks while an unproven one will not. The fact that you came to a different conclusion to others does not mean that your answer is wrong. Indeed, the average and above average answers came to different conclusions in some instances yet both are clearly passing papers. Make sure your answer proves your conclusion and you will be well on the road to a good mark. And try to avoid talking to anyone after the exam. They always seem to have reached a different conclusion and you end up worrying unnecessarily. You should ensure you support your answer and all will be well. Two last comments. First, these are exam answers. They are not perfect or even to the standard of an assignment. In an assignment far more detail would be expected. As an example, the following extra paragraphs might well appear in an assignment within the discussion about defective goods and the comparison to the Glendale case:

Chapter 10 - Study Strategies and Suggestions for Commerce Students

This sort of detail - the quotes and so on - are not required in an exam. Knowledge of the law, application of the facts to the law and supported conclusions are all that is needed. Students can be very well prepared for exams and the temptation to write everything is overwhelming. Exams are time-limited pieces of writing and you need to moderate and write what is needed and so have enough time to finish the exam to a good standard. Second, please take care with how you use these answers. A marker should not see whole paragraphs of this sample answer appearing in your assignment or exam with just the names of the parties changed. Every question in law is based on facts . The slightest change of facts will alter the answer required. Every answer you write must be based on the exact fact pattern asked - not one that seems similar.

The courts found that Glendale marketed caustic soda for the purpose for which Mr Barnes used the product and while there may have been no prior evidence of an incident such as what occurred it was quite foreseeable that caustic soda may have been poured down a drain which had hot water in it. The court also found that "the possibility of reaction with hot water was one which was sufficiently well known for a conclusion to be drawn that it was not safe for caustic soda to be marketed in a package for the purpose of use such as that described without a warning against using it with hot water in a confined space". The court further stated that "persons generally are entitled to expect to be warned of a danger or lack of safety in respect of a use to which goods might reasonably be expected to be put". While there was a warning on the label of caustic soda which stated the contents of the container was corrosive and that contact with eyes and skin should be avoided the courts found that this was not adequate having regard to the nature of caustic soda and the purpose for which it was marketed. In fact, the instructions about safety glasses were deemed by the courts to be "inadequate to bring home to an ordinary reader the risk of being injured in the way in which Mr Barnes was injured". Caustic soda was deemed a defective product because its safety was no such as persons generally are entitled to expect.

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