TOPIC 5
INTRODUCTION TO LEGAL PROBLEM SOLVING
An introduction to different ways of classifying the law, and solving legal problems.
Materials
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Class problem
State Government Insurance Commission v Trigwell (1979) 142 CLR 617 (Selected
extracts, available via Library E Reserve)
Further Reading
Radan, Gooley & Vickovich, Principles of Australian Contract Law, 3rd ed. LexisNexis, 2013
Radan, Gooley & Vickovich, Principles of Australian Contract Law, Cases and Materials, 3rd
ed. LexisNexis, 2014
5.1
Classifications of law: private, public and commercial law
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5.2
Overview of problem question
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5.3
IRAC
Discussion of “issue”, “application” and “advise”
Importance of integrated discussion
Case reading exercise (e.g. Mason J in SGIC v Trigwell) to demonstrate how
judges use this methodology when they are answering legal problems in cases
Using case law: Extended overview of contract law
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5.5
Class discussion of types of legal issues raised by problem, and where we may
look to find the relevant law to address these problems
Class discussion: determine issues of law and issues of fact to be resolved
Overview of problem-solving methodology
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5.4
Public law: criminal law, constitutional law, administrative law, evidence, practice
and procedure etc.
Private law: tort, contract, real property etc.
Commercial law: commercial transactions, law of associations etc.
National law and international law
The common law
o and civil law
o and statute
o and equity
Private law, based in case law
How do we know when a contract exists?
How do we know what is in a contract?
Introduction to problem solving using case law
Using Statutes: Introduction to Competition and Consumer Law
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Example of public law, heavily based in statute, but with important role of judicial
interpretation of statute
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5.6
Overview of Competition and Consumer Act 2010 (NSW)
Consumer Guarantees – ss54, 55 Australian Consumer Law
Interaction of statutes with case law
‘Old’ cases and ‘new’ law
Example of co-operative solution to constitutional limitations
Sources of legal rights – contract (private) and legislation (public)
Revisit problem question
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Isolate all relevant issues
Identify relevant law
Apply law to the facts
Reach a conclusion
INSTRUCTIONS RECEIVED IN CONFERENCE FROM
MAVIS STEWART: New client
Mavis Stewart attended our office today with her daughter Kylie Berg and a coffee cake, baked
that morning. Ms Stewart is a keen cook and has a number of problems arising from a recent
kitchen renovation, in respect of which she seeks our advice.
The kitchen renovation included new flooring. Mavis was particularly interested in flooring as
she had difficulties keeping her slate tiles clean. She searched for low maintenance flooring
and after extensive shopping decided on single sheet vinyl flooring. She saw just the thing at
Discount Lino Barn, close to Kylie's home. Kylie indicated that she didn't share her mother's
preference for vinyl flooring as it was cold underfoot and she had suggested kitchen carpet.
Kylie and Mavis spoke to Mike at Discount Lino Barn who suggested under-floor heating could
address Kylie's temperature issues.
Kylie provided details of the under floor heating options while her mother left the conference
room to offer slices of her coffee cake to the other staff. Kylie also advised that her mother
was having problems with Whitegoods World from which she had bought her fridge. Kylie
advised that her mother required a “French Door” fridge with freezer drawers underneath to
accommodate the large baking trays she used for her cakes. She had ordered the fridge she
needed from Whitegoods World but had experienced delivery problems.
Mavis returned to the conference room. She advised that she had had to make a large coffee
cake that morning, even though her preference would have been to make cup-cakes. In fact,
one of her legal problems was her cup-cake oven. Cake Cookers is a specialist retailer which
sells products designed for those who like to cook cakes. It retails a number of specialist pans
and other baking utensils - many imported from America and not readily available in Australia
- as well as a special range of cake ovens. They are located in Broome, and Mavis lives in
Sydney, but Cake Cookers sells throughout Australia by catalogue. Mavis wanted a special
cake oven in her new kitchen. She saw an oven that looked perfect for her in their catalogue
- the picture showed 8 slide out patty pan trays instead of oven trays - exactly what she wanted.
She rang the store and spoke to Cathy. She told Cathy all about her cupcakes, her favourite
recipes, and her interest in the patty pan oven in their catalogue. Cathy told her that the patty
pan oven had eight slide out patty pan holders instead of oven racks, and that each patty pan
holder would take one dozen patty pans. Even better, they came with self-cleaning silicone
inserts. Mavis was delighted about the self-cleaning but concerned that each tray would only
take one dozen patty pans. Although after discussion with Cathy, she was convinced that the
overall capacity of the oven was appropriate, and so she placed an order.
Her oven purchase was much more successful than her fridge which, on the very day it was
due to be delivered - not only did not arrive, but the shop called her to advise that delivery was
delayed for one month. Mavis said to the shop keeper: “Well that's no good to me. I ordered
that fridge for today. I need that fridge today. I told you when I ordered the fridge that I needed
it to be delivered today. The only reason I ordered from you was that you told me I could have
it today. If you can't give it to me today, you can just keep your fridge!! I don't want it anymore.”
Mavis then rang Quick Fridge and ordered and received another fridge that afternoon, suitable
for her requirements. However, one month later, Whitegoods World delivered the fridge
originally ordered, and demanded payment. Mavis refused to accept the fridge or to pay, and
advised them that the order had been cancelled. Whitegoods World is threatening to sue
Mavis for the price of the fridge - $5,500.
As well, Mavis is being threatened with legal action by Chrissie Saranrap. Chrissie was
married a month ago and was expecting Mavis to produce her specialty - the “nouveau
doveau” - a tiered tower of cupcakes, iced in white and arranged to resemble the wings of
doves - as the centrepiece cake for her wedding reception. Mavis loves doing cakes for
weddings; in fact she now makes more money from doing wedding cakes than she does from
her regular cooking classes.
Chrissie read information about Mavis' cake services in an article in the local paper, and called
round to see Mavis, and look at the different cakes she could make. They discussed
possibilities and pricing and Chrissie left with a price list. Apparently, Chrissie called and left
Mavis a message on the answering machine ordering the “nouveau doveau” for her wedding,
to be delivered on 2nd May at the wedding reception, for $2,000 COD. In her message, Chrissie
had said: “If I don't hear to the contrary, I'll assume everything is OK. Call me if there is a
problem - otherwise I will see you on the 2nd. Looking forward to your lovely creation.”
Unfortunately, because of all the work being done to the kitchen and problems with electrical
supply, Mavis had experienced a number of black outs which had interrupted her answering
machine. Mavis did not receive the message from Chrissie, and so of course, had not provided
the cake. Chrissie is very angry and claims her wedding was ruined without the cake. She has
threatened to sue Mavis.
Mavis advised that even if she had known about the cake order she would have had difficulty
fulfilling it because of problems with her newly installed cake oven. When the oven arrived she
saw that instead of Australian sized delicate patty pan holders, the cake trays were large
American size muffin holders. This is not what Mavis wanted at all. Mavis rang Cathy and told
her that the oven was not suitable for the cakes in which she specialised. Cathy said that she
was sorry that Mavis was disappointed, but advised that there was nothing they could do about
it now. Mavis wants to know if she still has to pay the $8,000 for the special cake oven.
She is also angry about the flooring she has had installed. Despite Kylie's protests she went
ahead with the single sheet vinyl, and did not have under floor heating installed. The vinyl,
while easier to clean than the slate, is marking and scuffing badly however. She has only had
it down 6 months, and already there are a number of wear marks. Her cupcake classes - which
she runs 5 times a week and more often in the school holidays - are now so popular that she
has at least 20 students per class. Because of her renovations she has room for them all
around her lovely new island bench, but the vinyl around the island bench almost looks like a
race track. It is as if her students have worn a path around the bench - and in only 6 months.
The vinyl was quite expensive - as she had heavy grade domestic installed - so Mavis is very
unhappy. She hasn't yet paid the bill for the vinyl as she has been arguing with the company.
They are, according to Mavis, now getting nasty, and want their $45,000 immediately. Advise
Mavis.