Legal Problem
Questions
3. Using the relevant law
An answer to a legal
problem question
without sufficient
reference to the
law is incomplete.
Starting point
Apply law
to facts
Identify
issue
Identify
relevant
law Having identified the issues
raised by the problem, the next
step is to identify the relevant
law you will use to solve the
problem.
How?


Typically, identifying the issues will
suggest the relevant law to be used to
solve those issues.
Consider the following example we used in
Workshop Two, where we identified the
issues raised in a problem question.
Alice runs a small stationery business specialising in wedding
invitations. Her husband John owns a large printing business,
and because he buys such a large volume of paper, he is able
to purchase his paper much more cheaply than Alice. On
Thursday night, after cooking John’s favourite meal, Alice asked
John if he would supply her business with paper at his cost
price. John said, “Of course honey. Whatever would make you
happy.”
Alice then decides to invest in specialist inks. On Friday she
rings her supplier at Mary’s Inks Pty Ltd and talks to Mary. She
discusses her plans to expand her wedding invitation business
into programmes and place cards, which means she will need
to order additional ink colours, and ink which is suitable for
printing photos and graphics. Mary tells Alice that all the ink
they supply is of the highest quality. Alice orders 2 dozen black
ink cartridges at the list price of $30.00 each, to be delivered
next Friday. She also inquires about gold and silver inks, and is
told that gold cartridges are available for $80.00 each, and
silver for $75.00. Alice is unhappy with these prices, and
considers that as a long standing customer, she should receive
a better price. She tells Mary that she is prepared to pay
$60.00 for the gold cartridges and $50.00 for the silver. Mary is
unsure whether or not these prices are acceptable.
Alice tells her to think about, and that if she doesn’t hear to the
contrary, she will take 5 gold and 5 silver cartridges, to be
delivered with the black ink cartridges on Friday.
On Friday morning, Alice receives a delivery from Mary – of 24
black ink cartridges but no colour cartridges. Alice rings Mary,
thanks her for the delivery of the black cartridges, but notes
there are no gold or silver cartridges. Mary advises that she
has decided not to supply them at Alice’s price – Alice protests
that they had an agreement about the coloured inks. Alice then
rings John and asks him to send over some paper she needs –
at cost price as agreed. John replies that he will certainly
provide her with paper, but that he needs to do so at market
price. She protests and reminds him of last Thursday evening.
He replies “Ah yes. That was dinner, this is business.”
After Alice gets off the ‘phone her assistant Peter shows her an
order for wedding programmes on which he has been working,
using the black ink supplied by Mary that day. The text was
fine, but the photo of the bride and groom has printed blotchy
and streaky. He tells Alice there is a problem with the ink – it
will not print photos properly. Advise Alice.
Issues raised

Her husband John


Alice and John are married. An important
issue to discuss is intention to create legal
relations.
Having identified this issue, you will know
that you have to consider the law of
intention to create legal relations, any
relevant rebuttable presumptions, and
cases such as Merritt v Merritt [1970] 2 All
ER 760
How will you know the relevant
law?



We have previously said the first step in
legal problem solving is to have an
understanding of the relevant legal area.
You need enough legal knowledge to
identify a starting point – an issue, and a
relevant case or statute.
You can begin any research from this point
– but you can’t begin to answer a question
by researching the facts.
More issues

ink which is suitable for printing photos
and graphics.


This discussion – about the purpose of the ink
purchase - reminds us that legislation may
imply a term into a contract that the goods be
fit for the purpose for which they have been
bought.
Having identified this issue you will know that
you must consider the Trade Practices Act
1974 (Cth) and/or the Sale of Goods Act 1923
(NSW)
Consider:





How much of the legislation will you need
to consider?
Is it enough to mention the Act?
Or do you need to consider specific
section(s) of the Act?
If you are using legislation does this mean
that case law will not be relevant?
Would you ever use case law and
legislation?
More issues

if she doesn’t hear to the contrary, she will take
5 gold and 5 silver cartridges, to be delivered
with the black ink cartridges on Friday.
 Alice is suggesting acceptance by silence.
 This raises the issue of how an offer may be
accepted.
 Is it enough to discuss the principles
generally (eg communication) or do you need
to discuss specifics such as the rule about
silence discussed in Felthouse v Bindley
(1862) 11 Cb (NS) 869?
BUT, the issues don’t suggest
any relevant law to me……


If you are in the unfortunate position
where you can spot the issues, but cannot
identify the necessary law, then check
your text book or lecture notes for ideas
and clues as to the relevant law.
It is wise to review your text and notes
anyway to make sure you have identified
all the relevant law.
How much law do I need?



You have picked the issues raised and
identified the law you will use to solve the
problem.
How much ‘law’ do you need?
Remember that legal problem questions
are different to legal essays or journal
articles.
Legal problems



A legal problem is not asking for a
theoretical discussion of the law – it
requires the practical application of legal
principles to a set of given facts.
So….
A problem question does not require
extensive hypothetical legal discussion.
Relevant law


A clear statement of the relevant law is
generally sufficient – supported by
relevant legal authority
‘Relevant’ is important. Rather than
discussing all the law you know, you need
to choose that which is relevant to the
problem at hand – and only that which is
relevant to the problem.
Think about your legal knowledge
as your wardrobe – full of
clothes of different types
How much of
your
wardrobe will
you pack for
the special
purpose of
going on
holidays?
How much law?


An answer to a legal problem does not use
all your legal knowledge.
It requires only that legal knowledge
which fits the special purpose of the
problem.
Specific legal knowledge

Always think in terms of specifics:
- not a general proposition or a vague
understanding, but a particular principle
enunciated by a particular judge in a
particular case;
- or, a named section of named legislation,
the relevant elements of which have been
set out for discussion.
What law to use?

The two primary sources of law in a
common law system are:



Cases
Statutes
Even though you may rely heavily on your
text or lecture notes these are not primary
sources – and are no replacement for a
discussion of cases and statutes.
So, on what cases, or
what sections of which
statute (or which
combination of both) will
you build the answer to
the problem?
Common errors


Students often mistake facts for law. They will
set out the facts in detail and think that this
answers the question. It does not.
They will set out the law in vague generalities
and think that this will answer the question. It
does not. All it does is indicate that the person
in question has a vague and general
understanding of the law – which is not enough
for practice and will result in a fail.
Examples
Consider the difference between the following two
examples:

It is clear from the cases that a collateral contract may
co-exist with another contract and will be enforceable.
Here, the collateral contract provides…
OR

A collateral contract, apart from the general rules of
contract formation (especially consideration) requires the
following two elements to be present:



A statement of a promissory nature (JJSavage v Blakney) which
is
Consistent with the main contract (Hoyts v Spencer).
Let us consider these in turn to determine if a collateral
contract is present here.
Which example provided the
strongest legal foundation to the
argument?
 Which example demonstrated a clear
knowledge of the relevant law?
 Which example supported the law
with reference to relevant authority?
 Did either example discuss the law in
detail?

State principles concisely


The relevant legal principles should be
stated concisely and relevant authority
provided.
Where will you find this concise statement
of legal principle?
Cases

From the case itself?


From the text book?


Not always
From lecture notes?


No – but from the case note you have written
summarising the case
Not always
From the concise summary you have
prepared of the text, lectures and case
law.
Cases


It is rarely necessary to discuss the facts
of a case or provide much detail – all you
need is a statement of legal principle for
which the case is authority
Exceptions:

When the facts of the question are very
similar to the facts of a case, especially where
a question may turn on the difference
between the facts in the case, and the facts in
the question
Exceptions

Where the judgements differ, and offer
differing views of the legal principle in
question, you should discuss each of the
judgements (or the majority and minority)
and consider how the differing
understandings of the legal principles
could result in different outcomes in the
present case.
Statute

From the legislation itself?


Yes – the relevant section will be a concise
statement of the law.
However, each section normally contains a
number of different legal principles or
elements – all of which have to be
considered individually, and then their
collective effect assessed.
Textbooks?


As you are reading cases consider how
often – or how infrequently – the judges
refer to text books.
Text books are a secondary source. They
are never as useful or as authoritative as
the primary sources they discuss – cases
and statutes – and should be used
sparingly, if at all.
Other sources?



Are nutshells, lecture notes or Wikipaedia
good sources of law?
They may be where you first learnt of the
principles under discussion, but they are
not authoritative sources.
Wikipaedia is a blog – nothing more,
nothing less. It is never an authoritative
source.
But in practice?


You may be familiar with examples of legal
problem solving – eg letters of advice to
clients – which do not support their
conclusions by reference to the relevant
law.
Style will differ from practice to practice.
Some may decide that a discussion of the
relevant law will only confuse clients.
Clients


Clients will assume you have relevant legal
knowledge – they will not need you to
demonstrate this.
In any studies leading to a professional
qualification however, you must
demonstrate that you understand and can
identify the law on which your conclusions
are based.
Consider:



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What is important about a case or statute?
Is it the case name?
Or is it the legal principle which has
become a binding part of our law because
of the decision in that case?
Is it the section number?
Or is it the legal principle which has
become a binding part of our law because
of the enactment of that section?
It is always the legal
principle which is most
important. The source of
that legal principle (eg
case name) is important to
support that principle –
but it can never replace it.
So……



A list of case names is NOT a statement of
the relevant law.
A list of statutes, or sections, is NOT a
statement of the relevant law.
These are statements of authorities – NOT
law.
Example One
Law

Telstra Corporation v Treloar (2000) 102 FCR 595

Lipohar v R (1999) 200 CLR 485

Viro v R (1978) 141 CLR 88

Cole v Cunningham (1983) 49 ALR 123

Smith v River Douglas Catchment Board [1949] 2KB 500

Engineers’ case (Amalgamated Society of Engineers v Adelaide Steamship (1920) 28
CLR 129)

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Grey v Pearson (1857) 6HL Cas 61

Adler v George [1964] 2 QB 7

Heydon’s case (1584) 3 Co Rep 7a at 7b

Avel Pty Ltd v Attorney-General for NSW (1987) 11 NSWLR 126

Mills v Meeking (1990) 169 CLR 214

R v L (1994) 49FCR 543

Bermingham v Corrective Services Commission of New South Wales (1988) 15NSWLR
292

R v Young (1999) 46 NSWLR 681,

Wacando v Commonwealth of Australia and the State of Queensland (1981) 148
CLR1

Commissioner of Taxation (Cth) v Whitfords Beach Pty Ltd (1982) 150 CLR 355

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Example Two
Law
The issue here requires us to interpret the
statute according to relevant statutory and
common law principles. The traditional
purpose approach, discussed in Heydon’s case
(1584) 3 Co Rep 7a at 7b is reflected in modern
statutory approaches, although the High Court
reminds us in Project Blue Sky Inc v Australian
Broadcasting Authority (1998) 194 CLR 355
that a number of approaches are available to
us, and may be required.
Consider:




Which example provides ‘more’ law?
Which example provides the clearest
discussion of legal principle?
Which example demonstrates an
understanding of the law?
Which example shows the ability to select
the legal principles relevant to the
question?
Summary



A legal problem question is unfinished if it
only discusses the facts – it must discuss
the relevant law.
The relevant law will be that part of your
entire legal knowledge needed to answer
the question.
A relevant legal discussion will be specific
rather than general.
Summary



A relevant legal discussion will be well
supported by relevant primary authorities
– case law and statute.
But simply listing the names of cases and
statutes is not providing a statement of
the relevant law.
A good answer will be based on the
relevant legal principles.