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
Gooley & Radan, Principles of Australian Contract Law, LexisNexis, 2009
Gooley, Radan & Vickovich, Principles of Australian Contract Law, Cases and
Materials, LexisNexis, 2009
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
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
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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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
5.5
Using Statutes: Introduction to Competition and Consumer Law
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5.6
Example of public law, heavily based in statute, but with important role of
judicial interpretation of statute
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.