LEGAL
PROBLEM
QUESTIONS
1.What is the issue?
Issue of fact or issue of law?
Picking the legal issue
raised is the most
important skill in answering
a legal problem. Before you
can do this however, you
need to be able to
determine the difference
between an issue of fact
and an issue of law.
It is the issue of
law which
requires
an
answer – not
the issue of fact.
A lawyer is not a private
investigator.
Issue?

“Issue” means issue in dispute, or question. You
need to resolve this to answer the problem before
you. e.g. consider the following maths problem:
Mary goes to the butcher. She wishes to
buy ½ kg of sausages. Sausages are
$17.00 a kilo.
The issue, or the question to be determined, is
how much will ½ kg of sausages cost, or what is
½ of $17.00.
The same principle operates when solving legal
problems – you need to consider the facts to
work out what the issue to be resolved is.
Legal issue



Focus on the legal issue – not social,
policy or personal considerations.
The issue is not that sausages are an
outrageous price, or that Mary should
become a vegetarian, or that competition
from supermarket chains is driving the
local butcher out of business.
The issue is: how much will ½ kg of
sausages cost.
A legal problem is not a
stimulus, which seeks a
response based on personal
experience or social or
policy reflection. It is a
problem which requires legal
analysis.
Role of facts




Facts are important – because the facts
disclose the legal issue in question.
But the question is never about the facts.
The facts are an artificial vehicle used to
raise legal issues and to test your
knowledge of them.
Don’t get so distracted by the facts that
you lose sight of the law.
Important facts?


The facts that Mary wants to buy sausages in
the amount of ½ kg and that they cost $17
per kg are important.
They are important because by considering
these facts we can discern the issue: how much
will ½ kg of sausages cost, or what is ½ of
$17.00.

The answer will not be about sausages,
but about the formula (or law) we will use
to determine the price of ½ kg of
sausages.
Application



The facts of a question are also important
as they will be necessary to frame the
answer to the problem.
So, in our example, the answer will not be
$8.50. The answer will be framed in the
given facts – Mary will need to pay the
butcher $8.50 to buy ½ kg of sausages.
Another way of saying this is that the law,
or principle, must be applied to the facts
to provide an answer.
So the process of
identifying the issue in a
problem question is a
process of reading the
facts closely and
carefully to work out
what legal issue they
raise for determination.
Sometimes the facts will
remind you of a case –which
will generally make it easy
to identify an issue. Often
they will not. But you need
to learn how to read the
facts carefully in order to
identify the legal issue
being raised.
To remember:


But remember: a consideration of the
facts is the means to discerning the issue
of law to be answered.
Facts – and any questions of fact you may
have – are not the focus of a legal
problem question
But in legal practice?




This is different to legal practice.
In practice, clients will come to you with problems which
raise both legal and factual issues. You will then need to
be able to distinguish between the two. You will seek
further instructions to resolve the questions of fact, but
you will have to use your legal knowledge and research
skills to resolve the issues of law.
A legal practitioner is only interested in those questions
of fact which highlight issues of law to be resolved, and
serve as evidence in respect of legal propositions which
need proving. Legal practitioners are not private
investigators.
Remember that a legal problem question, like an exam
question, is artificially constructed to test your
knowledge of a particular area. It will always be
concerned about issues of law – not fact.
Difference between an issue of fact
or law?



A good rule of thumb is to ask yourself,
who or how a particular issue can be
determined.
If it can be determined by a witness giving
evidence it will be a question of fact.
If it falls for decision by the judge, it will
be a question of law.
So, is a particular fence in dispute
made of timber palings or
Example
colourbond? Any witness who has
seen the fence can give evidence
 So, is a particular fence in dispute made of
abouttimber
its construction
this is a
palings or –colourbond?
Any witness who
question
fact.
has of
seen
the fence can give evidence about its
. Is the fence on the dividing line
construction – this
is a question of fact. Is the
between
properties?
fence on the dividing
linetwo
between
two A surveyor
could give
expert
evidence about
properties? A surveyor
could
give expert
evidence about this
this matter
matter –– itit is
is aa question
question of
of
fact.
fact. Is the timber/colourbond
construction
on/off the dividing line between two properties a
fence” within
the meaning
of the
Is the“dividing
timber/colourbond
construction
on/off
the
“Dividing
Fences two
Act”properties
– only a judge
could
dividing
line between
a “dividing
answer
Thus, it is
question
of law.
fence”
withinthis.
the meaning
of athe
“Dividing
Fences
Act” – only a judge could answer this. Thus, it is
a question of law.
Exercises

Consider whether each of the following will be
issues of fact, or issues of law:

What is the expiry date of a particular lease of a
certain residential property?
Fact, anyone who has read the lease can answer
this question
• Have all the tenants of the residential property signed
the lease?
Fact, again, anyone who has read the lease can
determine the parties to the lease
Exercises continued

Will all the tenants who have signed the lease be
bound by all the terms written in the lease?
Law – the effect of a party’s signature on a
contract cannot be determined simply by looking
at the lease. It requires a consideration of the
relevant law, e.g the signature rule in Toll v
Alphapharm
• How many bedrooms does the house the subject of
the residential lease contain?
Fact – anyone who has seen the house
will be able to answer this question

Does the house have termites?
Fact – any pest exterminator could give
an expert opinion about this matter.
•If the real estate agent made an oral promise to the
tenants that the house was free of termites, and the
house proves to be infested with termites, can the
tenants force the real estate agent to fumigate the
premises?
Law – the answer to this question requires a
consideration of the issue of whether or not
the statement made by the real estate agent
forms part of the contract for the lease of
the premises, or may perhaps form a collateral
contract which will be enforceable by the
tenants.
Exercises
Isolate the issues of fact and law in the following
problems and describe how you would resolve them:
Pam
is driving along the Great Western Highway
in Sydney when she is stopped by Highway Patrol
officers who inform her that she was travelling
over the speed limit.
Issue of fact: what speed was Pam
travelling – seek instructions.
Issue of law: is the speed at which she was
travelling in excess of the speed limit posted on
the highway in accordance with the relevant
legislation and any regulations made pursuant
thereto
James needs to pick up his pet dog Pepe from the groomers. All the parking spots at the groomers’
premises are taken and so James parks his car in the street and rushes in to pick up Pepe. As he
returns to the car he notices that he has parked in a No Parking zone and that he has received an
infringement notice pursuant to R168 of the Australian Road Rules, which provides in part as
follows:
168 No parking signs
(1) The driver of a vehicle must not stop on a length of road or
in an area to which a no parking sign applies, unless the
driver:
(a) is dropping off, or picking up, passengers or goods; and
(b) does not leave the vehicle unattended; and
(c) completes the dropping off, or picking up, of the
passengers or goods, and drives on, as soon as possible
and, in any case, within the required time after
stopping.
Offence provision.
(2) For this rule, a driver leaves a vehicle unattended if the
driver leaves the vehicle so the driver is over 3 metres from
the closest point of the vehicle.
(3) In this rule:
required time means:
(a) if information on or with the sign indicates a time —
the indicated time; or
(b) if there is no indicated time — 2 minutes; or
(c) if there is no indicated time, or the indicated time is less
than 5 minutes, and rule 206 [re handicapped drivers] applies to the driver — 5
minutes.
Advise James.
Answer


Issues of fact:
 How far away from the car was James when he was picking
up his dog – seek instructions
 How long did James take? – seek instructions
Issues of law:
 Is Pepe a passenger or a good? The rules of statutory
interpretation would need to be applied to work this out
 Did James leave the car unattended – the law would need to
be applied to the facts to determine this – the meaning of
unattended will be determined by reading the entire rule in
accordance with the principles of statutory interpretation
 Did James pick up Pepe within the required time – again, the
law needs to be applied to the facts – including a
consideration of whether or not James is the holder of a
Rule 206 certificate.

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Assume you are advising James, not in real life – when you can seek further
instructions – but in an artificial exam situation. How would your advice
change?
In an exam situation, you cannot seek further instructions – you
simply consider the issues based on the information provided.
Sometimes this information will seem incomplete – this is not
asking you to discuss what the facts might be. It is asking you to
indicate your knowledge of the law by indicating what facts will
need to be determined and how the advice may change in different
circumstances.
So, your advice would:
 Ignore the issues of fact
 Concentrate on the issues of law
 Indicate – briefly – what facts (eg time taken) have to be
determined.
 Focus discussion on issues of law.
In our example, there is one central issue of law – is Pepe a passenger or a
good within the meaning of the law, or does the animal fall into a third
category not covered by the legislation. The other issues we identified are
issues of simply applying the law to facts to be determined. Because the
question only provides enough facts to discuss one issue in detail – this is
the issue which should form the focus of the discussion
Legal problems are always seeking a
legal discussion – not a discussion of
the facts.