Archives For Law

Working as a Tipstaff in the Supreme Court, I often get called by barristers and their assistants if the Judge is robing for the day’s matter. To clear things up, I present to you the following cheat-sheet, although, remember, if you are ever unsure, feel free to call the chambers of the Judge you are before and the Tipstaff or Associate should be able to help you out. Also note, this is a general guide, some Judges have different robing habits.

M. A. Jinnah in barrister's robes

Warning: robing has the side-effect of making barristers look bad-ass. Public domain, via Wikimedia Commons

Rule of thumb:

For a hearing: robe.

This is the basic rule. From this, most other rules derive. For example, since judgment is an extension of a hearing, you robe for judgment as well.

Second rule of thumb:

Generally, do not robe for a Notice of Motion.

However, there are some exceptions to this second rule, especially when certain “court lists” are involved.

Exception one:

For an appearance before the Duty Judge, Robe.

I believe that this is because, in the Duty List, there may be a situation where, although the case is brought at short notice, the matter may be dealt with as if there was a hearing.

Exception two:

For an appearance in the Probate or Protective Lists, Robe.

This appears to be a matter of tradition.

There’s a summary list after the jump… Continue Reading…

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C.f. the 8th Amendment of the United States Constitution with “Botched lethal injection takes nearly two hours to kill Arizona inmate.” Horrifying.

Text of 8th Amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

See also:

 

This summer (in the northern hemisphere), the New Yorker has taken down its paywall! The archive is now free to read. This magazine has some of the best long-form writing I have ever had the pleasure to read.
Don’t squander this opportunity to read some amazing articles!
New Yorker New Website

Credit Illustration by Barry Blitt.

Some articles I recommend:

“Nature has very conveniently cast the action of our sight outwards.  […] Everyone says: ‘Look at the motions of the heavens, look at society, at this man’s quarrel, that man’s pulse, this other man’s will and testament’—in other words always look upwards or downwards or sideways, or before or behind you. Thus, the commandment given us in ancient times by the god at Delphi was contrary to all expectations: ‘Look back into your self; get to know your self; hold on to your self.’ . . . Can you not see that this world of ours keeps its gaze bent ever inwards and its eyes ever open to contemplate itself? It is always vanity in your case, within and without, but a vanity which is less, the less it extends. Except you alone, O Man, said that god, each creature first studies its own self, and, according to its needs, has limits to his labors and desires. Not one is as empty and needy as you, who embrace the universe: you are the seeker with no knowledge, the judge with no jurisdiction and, when all is done, the jester of the farce.”

Continue Reading…

Reporting live from Geneva, at the Palais Wilson for the 60th Session of the UN Committee on the Rights of the Child, with the Australian Delegation.  For a live video stream, check out the webcast!  Follow @Janchildrights and @Oatsandsugar for tweets to come.

UPDATE – this session is now closed, tune in tomorrow for more!

18:01CHAIR – It is passed 6pm, so I have to adjurn, even though there are more than 6 committee members with questions, which, I guess, will be asked tomorrow.

17:48SANDBERG – Committee Member – Programs to deal with abuse and neglect are impressive, but are children being consulted in setting up these policies?  Re: children in the justice system, are there special measures for indigenous children, or non-legal mechanisms for dispute resolution, are they affective?  Information states that “crisis stage” rather than preventative measures are being focussed on.

17:47KOOMPRAPHANT – Committee Member – Australia has quite a good child protection system, but why is child abuse and sexual abuse increasing?  What is being done to prevent this? What liability is there for abusive parents? What therapy is being offered to victims?

17:49CARDONNE – Comittee Member – Re: Children with disabilities – data collection is insufficiently collected, and the proposed data collection policy is insufficient, because it doesn’t create desegregated data.  In 2005, the Committee recommended the stopping of forced sterilisation for non-therapeutic reasons.  Australia defended it because of therapeutic reasons, but this could be an exception to the ban.  Is there data on sterilisation? Unwanted pregnancy is not weighed appropriately against the physical integrity of the child. Forced sterilisation is not an appropriate measure for birth control.  Does the government still reject the recommendation to ban forced sterilisation.  Also, what measures are there on inclusive education v. special education for disabled children?  How does the juvenile justice system allow for disabled children?  You said you were concerned, but what are you doing about it?

17:45LEE – Re: mandatory detention of immigrant children – see roundtable – alternative detention should not be an alternative to release.  Re: legal guardianship – currently, Minister of immigration determines refugee status, but he is also the legal guardian, how do you explain this conflict of interest.  Re: Malaysia solution – conditions in Malaysia are not of high enough standard, applauds HC decision that it was unlawful – is the Federal government still considering repatriation as a solution.  Re: indigenous, has CoAG signed the Indigenous Education Action Plan, and what of the requirement of the first language being English, rather than their first languages?

17:40MAURAS – Re: Standards of living (one of the articles in the convention).  Despite prosperity, 12% of youths live in poverty. What is done to prevent this, especially for children and mothers in families (e.g. 18 months of paid parental leave)?  Homelessness, more than it should be considering your wealth: 34 000 youth homeless – what measures are being taken to prevent homelessness? Re: consumption of “toxic substances” – what progress is there in “simple packaging” – a forward move, but being combatted, what does Australia think about the IP rights argument of the Tobacco Industry?

17:32WIJEMANNE – Re: Family Environment and Alternative Care – an increase in children in “out of home care” – and reports of abuse in alternative care, and bad transition after they leave alternative care.  Are there preventative programs to that children don’t go into institutions? Are the institutions properly trained for care and transition?

Re: Adoptions, not too much data, but ombudsmen from Victoria showed that there was some abuse.  Are there systems in place to monitor this? Re: Basic health and welfare and children with disabilities, what institutions and support systems are there? Is there appropriate access to reproductive health services (answer with reflection to forced sterilisation for disabled persons)?

Re: breastfeeding – negative data in Australia, low “exclusive breastfeeding” and this is going down.  The initiation rate is high, but the continuation is low.  Perhaps this is because of inappropriate marketing of baby formula?

Re: mental health: for children and young people, there are problems (especially for access to services and amount of time before services are provided), and there are increases in youth suicides.

Re: HIV and Reproductive Health – a marked increase in STIs, what access do young people have to services and education?  What programs are there to prevent teenage pregnancies?

17:31CHAIR – We’re stopping answers now, time for the second round of questions for tomorrow.  We did spend time on preliminaries (data, constitutional law, etc.) , but they were important in framing the discussion.

17:28WOOLCOTT – Re: Data, it is being collected now, especially in justice and education, although data on disability is still weak.

17:25MAURAS – Let me insist on this matter – on the commonwealth level, you have many policies trying to rectify the separation of indigenous Australians, and “the gap”. There are statistics on “the gap” being collected, but the data collection is insufficient – “ethnic” variably isn’t used in statistics, how can you meet your commitment to your policies if your data gathering system isn’t providing nuanced enough data?  Re: National Council of Indigenous Australians, who chooses the members? What effect can they have on closing the gap?

17:23WOOLCOTT – CoAG has the final say on coordination of children’s rights issue.  At the same time, within the federal system, the PM and the Cabinet have responsibility for coordination of “whole of government” policies.  Further, the minister for indigenous affairs is responsible for cross-portfolio indigenous issues.

17:22 – LEE – on the issue on discrimination against indigenous australian, there are low indicators for indigenous communities, perhaps because of discrimination in access to health and other things.  E.g. food prices – these act as discriminatory practices.

17:19AIRES – The curriculum body has independant repsonsibility to create the curriculum.  HR is a major focus of the Australian curriculum, but how it is integrated is controlled by the independent body.

17:18AIDOO – Re: HR education, does the new curriculum see HR as a cross-subject educational priority? “If it has been done, then we rest our case”

17:13MANNING – Steps have been taken to educate government service providers on non-discrimination and on education on rights to marginalised populations.  Discussion of grassroots education on rights programs (e.g. via hiphop, sports, etc.).  Also seeking to educate members of the government, especially on CRoC requirements.  New Australian Curriculum to be put out for consultation by the end of the year – with a focus on non-discrimination.

17:11Australian Delegate – AHCSIAAustralian Government is looking at constitutional recognition of First Peoples, and reconciliation.  There is also, now a “national congress” with equal gender representation of first peoples.  Federal Government has set targets on closing the life expectancy gab by 2031, halving child mortality gap by 2013, ensuring early childhood education access for indigenous student 2013, halving gap in employment outcomes and year 12 matriculation.

17:09Australian delegate – Education – New curriculum tries to further involve indigenous history and culture.

17:08WOOLCOTT – we will now talk about non-discrimination in education and health

17:07WIJEMANNE – How to bring Indigenous Australians into the “main stream”

17:06NORES – committee member – we should discuss non-discrimination, not separation: indigenous Australians should have the same rights as Australian’s living on the coast.

17:05WOOLCOTT – Indigenous issues are related with health and the “so called alleged discrimination”.

17:04CHAIR – Health and education are to be discussed late, discrimination against indigenous Australians are what are to be discussed today.

17:04WOOLCOTT – Re: “closing the gap”, indegenous health and education

17:02MANNINGTreaties aren’t self executing, they must be implemented via legislation.  Federal law does prevail, but the treaty, thus, only prevails over state legislation if legislated by the federal parliament. Re: Child’s Rights Commissioner reports, they will be publicly presented, independantly, without any government supervision.

17:01KOTRANE – If there is a conflict between laws, does the convention have primacy over laws of the state?

16:55MANNING – Commissioner has a 3.5m dollar (over 4 years) for establishment of the role of the Child’s Rights Commission.  It will be an independent body under the rules of the Paris Principles. Would be part of the national HR Commission, with access to that budget: free to chose their own staff and fully independent.  Re: Chair’s question, what is a piece of legislation fails the statement of compatibility? It isn’t void immediately, but it signals this to parliament, who would (using a committee) inquire into it.  Parliament will take it into account when voting.  What can the federal government do if a state fails to meet HR treaties Asutralia has signed? Use the External Affairs Power (s51 xxiv?) to implement treaties.

16:53WOOLCOTT – Re: Why we don’t have a HR charter? Conclusion of the inquiry, no, the conclusion of the government after reading the report, was to incorporate HR into legislation and policy, rather than in a charter.  Common Law system also manages HR, but in a different way.  In ratifying treaties, it ensures that “all its laws” are in conformity with that convention.  Australia has engaged with the Paris Principles, and a long commitment to hte independence of HR commissions, you are right, they are not part of the executive and they have an independent budget, they are “strongly and fiercely independent”.  The Child’s Rights Commission will be an advocate for policy coordination, not part of it.

16:52GASTAUD – What can the federal government do to ensure that the state conform with the CRoC?

16:51KOTRANE – Australia has a constitution, but it doesn’t have a charter of rights on a federal level.  Only two states and the ACT have charters, but there is not Child Rights in these charters. As such, how is the role of the convention reflected in the states?

16:39CHAIR – Re: Federal System, how do you ensure access to all rights for all children fairly and without discrimination – with a system like this, there is an acute risk of having discrimination because of the variety of legislative bodies.

16:46 – MORAS – Don’t confuse two things: role of independent ombudsmen and coordination (i.e. the commissioner) … should be autonomous of the executive, it should have advocacy and monitoring roles.  This is not to supplement the executive’s function.  If it complements the coordination powers of the executive, “then I will be very worried” and it wouldn’t fulfil the role of an independent observer.  Regarding coordination, we aren’t asking for a single ministry, but the coordination ability of the country to deal with a convention that is extremely broad.

16:42 – MANNING – Australian Delegation, AG‘s Office: Reiterates complexity and working of our federal system.  However, there is also a federal focus on Child’s Rights.  Every piece of legislation now needs a “compatibility check” against all major Human Rights treaties which Australia is a party to.  Re: Establishment of the National Children’s Commissioner – Questions on the model: dodged the question on the Paris standards and talks of the aims of the children’s commissioner and how he will work with state Children’s Commissioners.

16:41MORAS – Committee Member: Children’s framework refers only to a part of child rights, “special protection” – what of the rest of the convention?

16:38McKENZIE – Australian Delegation: Many federal ministers deal with Child’s Rights, and there are often state ministers with a direct Child Rights responsibility.  CoAG helps to smooth this coordination, especially the “standing committees” on specific issues, many of which deal with Child’s Rights.  Many other fora, including the “Children and Family Roundtable” for coördination.

16:38WOOLCOTT – Re: Coördination: 9 gov’ts and a complex constitution to deal with, making coördination complex.

16:37WOOLCOTT – The experts from the Australian delegation will answer the UN questions.  Tomorrow, Export Credit agency and Mining issues raised by Ms Perez will be adressed, rest will be adressed now.

16:35CHAIR – And we’re back.  Australia will now reply to committee questions.

16:05CHAIRAnti-terrorist laws, do they apply to children? How do they affect children?  End of First Round of questions, time for a break for Australia to prepare responses.

16:03LEE – Committee member – Re: Right to Privacy.  In WA and NT, photos of young offenders can be publicised, will this be amended? LRC recommendation on protection of privacy for children, has it been implemented, or will it be?  Young people don’t want to go to doctors because of confidentiality breaches (e.g. for sexual health), where parents have been told.

16:01GASTAUD – committee member – Focus on coördination between ministries in the federal government, and between states. “If a Child has not been heard, would it be a breach of Judicial procedure in a case involving them?

15:56AIDOO – committee member – What dissemination and education on child’s rights are being made? How are they going to improve? Commend Attorney General and HR Committee websites for information.  Australian, knowledgeable 12 year old, “CRC is a fantastic document … but it is just that … most people do not know about it … it isn’t taught in schools“.  So, what is being done about that? “What concrete measures are you taking … to ensure the CRC are better known by children, communities and professionals? Have current education methods been evaluated?” Are there specific education programs for disadvantaged children?

15:53 VARMAH – Vice-Chaiperson – Re: birth registration process in Aboriginal Communities.  The procedures, including “fee”, are complex, and are often not followed through in Indigenous Communities.  Without this, there is no “legal personality”, ability to apply for a passport or drivers licence, tax file number, etc. [13% of Aboriginal Children aren’t registered, 2.5% of all Australians unregistered].  What information is being collected on this? How can Australia make this registration free, and told of?  Also, same sex, donor and children in Immigration Detention: how are birth registration issues being adressed in these areas?

15:50HERCZOG – committee member – No separate interviews for children in immigration. Participation of Children (Australian Youth Forum), but not enough, because they are only for mature adolescents, not for all children, who are complaining of being left out.

15:47MADI – committee member – One of the “most serious issue in our committee” is corporal punishment.  Australia should raise the bar, and work towards banning corporal punishment.  There is no legislation against this? “We are not dealing with a developing country?” … Australia’s efforts “are not enough!”.

15:46 – KOTRANE – 0.7% GDP as aid as goal, rather than 0.5%.

15:41Mr KOTRANE – committee member – Thanks to Australia for the exhaustive responses to UN issues raised.  Overall, Australia is doing well, and it respects the rights of the child.  We thank Australia for its National Apology.  How did voting in the Labour Government affect Rights of the Child in Australia? Concerning ratification, Convention on … Migrant Workers: is progress being made for this ratification?  UNESCO on non-discrimination in education, is progress being made towards ratification? ILO 138, 169 (Minimum Age, Indigenous Workers), Reservation on 37(c,b) – is ratification going to happen, is the reservation going to be withdrawn (we believe, in this committee, that the government reasons for the reservation are insufficient)? [UPDATE, UNESCO convention has already been ratified].

15:38Ms Hiranthi WIJEMANNE –  Second Rapporteur – Discussing Indigenous and Torres Strait Islander children’s rights, health and wellbeing.  Also, children homelessness.  Also, respect for views of the child – not enough coöperation with children in making decisions.  Lacking birth registration in marginalised communities (registration is required in the CRC).  Corporal punishment still occurs in homes, as “reasonable chastisement”.

15:37 – Mauras Peres: Access to information – criticising the “Great Firewall of Australia“, and what this could do to prevent Australian bullying.

15:36 – Mauras Peres: Calling into question Australian grants to Australian companies acting abroad – there should be a child rights (and human rights) check for these grants.

15:30Mauras Peres: Calling into question the acts of Australian mining companies abroad (and fisheries).  Understands that there are industry standars, but are these standards criminally enforceable in Australia – for example, for breaches of Rights of the Child abroad by Australian Companies?

15:28 – Mauras Peres:  Independent monitoring – Child’s Rights Commissioner, “we are delighted about”.  But are the fundamental criteria of the Paris Principles being met? 1. Is the commissioner with an independent budget? 2. Is he specialised in Child Rights? 3. Does it cover the whole of Australia?

15:26 – Mauras Peres: National frameworks, we understand, aren’t law, but advise state governments.  “Do you have a holistic, comprehensive national vision for the implementation of the CRC?”.  “Despite the federal systems, there are issues which must be dealt with federally”

15:22Mauras Peres: Committee member, Australian First Rapporteur.  Understands challenges of the federal government system, but understands that the Australian Council of Governments minimises the fragmentation caused by this. National Frameworks put in place have, also, helped with this.  But dialogue today is more about what there is, still, to be done.  As a highly developed country, the committee seeks to help Australia improve further.

15:21 – Back to Chairperson, opening the floor.

15:19 – Ambassador Wolcott: Issues – Indigenous children in juvenile justice system; children in out of home care.  Programs to prevent drug use and suicide have been put in place.

15:17 – Ambassador Wolcott: Positive changes cont’d. … “Australia takes seriously the responsibility to prevent exploitation of children“; positive changes to  immigration issues, especially for unaccompanied minors – a shift to community based immigration processing.

15:11Ambassador Woolcott: Positive changes – National Children’s Commissioner, as recommended by the committee; National paid parental leave scheme, especially for mothers of national minimum wage during maternity leave; Australian human rights framework, with an action plan in development to nationalise Child Rights; National Framework for Protecting Australian Children, New school/preschool curriculums; ABS, 94% of most vulnerable children are now enrolled in preschool (an increase); Australian Early Development Index for young children recorded every 3 years; NSW programs to reduce homelessness for children, especially aboriginal Australians; reform to disability insurance and disability policy …

15:09 – Explaining the federal system to the Committee, perhaps to show that the states, as well as the federal government have responsibility for Child’s Rights, not the federal government alone.  Discussing the NGO participation and reports – most children have a good standard of living, but there are issues, especially in indigenous and other areas.

15:08“Australia strongly supports engagement with the UN treaty committee framework … to improve conditions for children”Peter WOOLCOTT.

15:06Australian Head of Delegation – Ambassador Peter WOOLCOTT.   Presented report from 2008, and response to issues put forth by the UN.  Introducing Australian delegation.

15:03Chairperson’s address [Chairperson Zermatten], agenda for the afternoon: first to hear from the Australian Head of Delegation, then the two Australian Rapporteurs, then a break.

14:45 – Committee private meeting just began, observers asked to leave the room.

14:30 – Just got briefed by the NGO liaison on the way the committee meeting will run.

The committee room

13:55 – Settling in to the meeting room, sitting on the end, by a Danish NGO delegate who has an interest in Australia’s treatment of mental health.

13:30 – A Guinness World Record for the UN Declaration of Human Rights being the most translated document in the world

13:19 – Finally got my passport, heading to Palais Wilson for the NGO meeting. A bit less than two hours to go until the review starts.

13:00 – Waiting to pick up my passport

11:00 – Realise I forgot my passport at my apartment, a long schlep about the town to find it (missed the Commission’s review of Vietnam)

9:45  – Met with the Australian delegation at Australia’s permanent mission to the UN, with the ambassador and representatives from the Attorney General’s office, Immigration, Education, and more in attendance.


70317: Real Property

oatsandsugar —  August 2, 2011 — 6 Comments

This subject has a pretty bad reputation.  People fail, badly, and it used to be closed book!

Home economics building around 1913-14.

Studying real property to be able to buy a Real Property

But now there is a generous amount of marks for (quite easy) class tests.  And, the mid-semester and final exams are open book.  There are marvellous lecturers.  You definitely should not be scared of this subject.  It is a lot of work, but it is manageable.

The subject

This subject concerns itself with rights in land – “real property.”  You will find yourself spending 3/4 of the course trying to figure out the ranking of priorities between all the claimants.  It sounds pretty simple!

Basically, you learn the background stuff (Tenure, Estates and Native Title, the meaning of land) and you learn the new Torrens Title System (priorities, indefeasibility and its exceptions).  This makes up the content of your mid-semester exam (and, in my opinion, Torrens Title is the hardest topic in the course).

Then, you are on easy street, a light stroll of not to difficult 1 – 3 lecture topics (Old System Title, mortgages, co-ownership, easements, covenants and leases).  These build on what you learn, and each topic can be summarised into a couple of pages of flowcharts — what I call topic skeletons (don’t worry, I’ll give ’em to you).  These topics make up your final exam, and, from what I gather from my friends, last semester, most people did much better in the final exam than in the mid-semester test.

Geoffrey Moore’s textbook is very useful: together with the lectures presented, it provides a holistic view of the subject without bogging itself down too much in details.  This remains the only textbook I have ever read cover to cover.  However, where I found Mr. Moore’s textbook confusing, Prof. Butt’s textbook was very good, albeit a little long-winded.

Note, there were no in-class-tests during our Torrens Title section of the course, which lead me to fall a week or two behind in my note-making.  Do not let this happen, Torrens Title is quite difficult to catch up on in the few days before mid-semester exams.

The staff

There are three main lecturers for this subject, Shaunnagh Dorsett (an amazing teacher, who speaks with good Powerpoint presentations and delivers the information in an understandable way — she is absolutely lovely, and was happy to help students out in her office hours), Geoffrey Moore (a highly intelligent lecturer and practitioner who delivers his whole lectures from memory, and only writes up what is most necessary (e.g. his flow-chart of priorities in the Torrens Title System)) and a third teacher, who only delivers one lecture, but does it quite well.

I I would highly recommend that you try to get into Shaunnagh’s tutorial.

The tutorials/in-class-tests

Every week you have an in class test.  It is usually about a single topic.  It isn’t too hard.  It goes for about 5-15 minutes, depending I guess, on the mood of the tutor: there doesn’t seem to be any real pattern.  Your best two marks in these quizzes make up 20% of your final grade.

This is a gift.  The tests are easy and the questions are not at all analytical — they test whether you have listened to the material, read the readings and made some notes.  For example, we never once had a problem on whether something was a fixture or a chattel, but we did have a question on what court we would bring a certain cause of action in.

Just a quick hint: almost all the questions, here, refer to something that Shaunnagh has explicitly mentioned in the lectures — more often then not the questions do not go in to deeply on the textbook readings.  Sometimes, however, they refer to the facts of the case discussed in the “skills question” part of the tutorial .  As such, good lecture notes are essential in doing well in the in-class-tests.  Here are mine, they are quite lengthy, but also thorough: Real Property Lecture Notes.

Further, I’d recommend doing as many tutorial questions before walking into the class as possible — you don’t have to spend too much time on them, just try to sketch out some answers and find some proper authorities.  That way, if your way is totally wrong, you find out before the test, and if you get the answer right, you feel all warm and bubbly.  The best way to learn Real Property is by planning and doing problem questions, so these tutorial answers can go far.  Here are the answers I can find — I do not attest at all, however, to their correctness, as they were just rough sketches prepared for class: Tutorials1Tutorials2Tutorials3.

The mid-semester exam

The mid-semester exam is on Tenure, Estates and the meaning of land (this includes the fixture/chattel spiel) and Native Title, and on the Torrens Title System.  Our exam was split three ways, with the first section on Tenure and native title, and the second two parts being problem questions on Torrens Title — no questions on Chattels/Fixtures, I was quite disappointed in that.

People generally did really well in the first part, and less well in the second part (which is not surprising, since it is much harder).  There are tricksy bits in Torrens Title like determining when there is an exception to indefeasibility, and where it applies.  Here, it is very important to have succinct notes, and to know the cases well enough that similar fact-scenarios trigger your memory of cases.

If you guys like, I can scan up my mid-semester exam, since they gave our exams back to us.  Otherwise, my notes for the mid-semester exam are in the first section of the final exam notes below.

The finals

The final exams do not cover the content from the first half of the semester.  They only cover 6 little (quite easy) topics.  Most of my friends (and I) improved our marks in the final exam.

I brought my Real Property notes, the sample exams I had done, my lecture notes, and, most importantly, my craftily brief Real Property Skeletons provided me with a framework for every question they could ask.

After creating my notes and doing some past papers, the final exams turned out to be easy.  This subject may seem daunting, and has a lot of content, but it is a good subject, and you can do well if you do your notes progressively, throughout the semester.

This is a case note I wrote about:

The Premier Group Pty Ltd v Followmont Transport Pty Ltd [1999] QCA 232; [2000] 2 Qd R 338

for Commercial Law in the Autumn semester of 2011.  This is a case on bailment and sub-bailment and the rights which these relationships afford each party, especially with regards to detinue.  I achieved a High Distinction for this case-note.

Fannie S. Cohen, graduate of the University of Minnesota School of Pharmacy

After writing so much about bailment, these "drugs" they bailed begin to look a bit more appealing.

Continue Reading…

This is a case note that I wrote for my first year subject “Legal Method and Research” on the case

Scott v CAL No 14 Pty Ltd t/as Tandara Motor Inn (CAN 009 504 0081) and Another (No 2) (2009) 256 ALR 512

We were required to write a case note, but were given several questions as well: e.g. what policy considerations could have been taken into consideration, etc.  This case note was subsequently reproduces in the UTS “2011 Mentoring Guide” and “2011 International Student Legal Mentoring Handbook.”  Note that this case has subsequently been re-decided by CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390 in the High Court.

[Bob Burman, race car driver] (LOC)

Driving with beer goggles

Welcome first-years!

oatsandsugar —  February 25, 2011 — 1 Comment

New law students! Hi!

First of all I’d like to say welcome to Law and welcome to UTS.  My site is here to share the work I’ve done and teach what shortcuts I know around the course to make your life easier.

Graduating class of the St. Paul Talmud Torah

Law students can by ^this^ cool

If you are studying Business and Law, like I did, you’ll probably only start Law in the second semester.  You’ll probably be studying MPO, Accounting 1, Economics and BLE.  Not the hardest subjects, but I have a few tips and tricks on them anyway.  If you’re jumping straight into law, you will probably be doing Method, Perspectives and Contracts.  If you are studying anything else this semester, hit up my contents page and just find the subject you are looking for: if I’ve done it, I’ve written something up about it.

Also, check out my “nerding-it-up” posts about using technology in studying law.

I’m a peer mentor this semester (teaching a Wednesday class), hopefully I’ll be able to see some of you in class.

Finally, go to law camp! You’ll have the time of your life.

If you need any advice, hit me up with an email, I’ll be happy to help!

Constitutional law was a bit of a pet subject for me this semester.  I did the extra work, and got the better mark.  At the beginning of the semester, though, I wouldn’t have picked that it was going to be one of my favorite subjects.

Inkermann

ss 51(xxxii - xxxix) - Australia federated so we could catch a subway from Melbourne to Sydney.

The first few lectures were absolutely boring — the subject seemed chalk dry and any hope I had of us discussing the constitutional accuracy of “the Castle” seemed dashed.  We talked about issues that, whilst relatively interesting, seemed disconnected from the subject — how could we problem solve about whether Aboriginal Australians were to be represented in the preamble to the constitution?  The first few lectures seemed like a collection of bits and bobs somewhat related to the constitution.

Then we got our assignment.  Then we learned characterisation of the law, inconsistencies and about the separation of powers and rights issues.  Then the subject got interesting.

Our assignment was on the right to vote in Australia — did it exist (as an express or implied right), to what extent was it protected and did it need to be protected?  We were asked to assess our right with regards to certain criteria (i.e. defining franchise, the “value” of a vote, etc.). I deduced that, currently, we have an implied constitutional right to vote which is supported by our international treaty obligations, our common law and current legislation.  Further, I assessed that whilst other countries (e.g. South Africa) have a constitution which protects the right to vote more expressly, this alone cannot be the measure of success of a country’s democracy.  The strength of Australia’s democracy lay in its voter turnout (top 1% of the world, in those terms) and in the stability of the Australian political system.

That is, I wrote that we are a country where this right is unprotected, but where democracy is still strong.  My reference to international constitutions helped me excel in this assignment (HD), not because they were especially important, but because they helped differentiate my essay.  Find a way to differentiate your assignment, and you will do well.  Here’s my assignment: onlineword doc 70616Asst1, enjoy!

For class participation, you can get <16/20 easily, as long as you listen in lectures and scratch out an outline of answers before the tutorial.  I found that Lumb and Moens’ annotated constitution helped immensely in this (as well as in my final exams, and in researching my assignment, definitely the most important textbook to buy).

The rest of the subject comes down to characterisation, inconsistency, the separation of powers and rights. Basically, we ask these questions (formulated into a flowchart by Mr Geoff Holland (the head lecturer for the subject, and an amazing teacher):

  1. Is there a federal law — does it fall under a commonwealth head of power?
  2. Is there a state law — is there an inconsistency between the two?
  3. Are there any separation of power or rights issues?

With this framework of three questions, we can answer any problem question they throw at us.  We spend a good 70% of the course time studying the breadth of different heads of power, so this question is crucial.  However, even though we only study questions 2 and 3 for a couple of weeks each, they are disproportionately represented in exams, so all must be revised.  Theses are all summarised in my notes: 70616notes.

If you want to do well in this subject, differentiate your assignment, speak up in class and write a decent exam.

Revise by writing as many practice papers as you can, and going over them with your tutor (I had Mr Buanamano, but I asked Geoff Holland to go over my practice questions with me, since he explained things in a way which clicked with me).  Do as many characterisation questions as you can, at least one per head of power.  Remember your inconsistency and don’t forget your fiddly bits with federal courts, and how they are different from state courts in the powers they can exercise and their limitations.  There will almost always be an implied right to political communication question, so, out of the rights, this one is paramount.  Sprinkle, if you can, a few dissenting judgements (e.g. Murphy J on religion in The Scientology Case) and a couple of current cases, and you will do well in your exam.

This is a subject you can do well in, if you do your work and formulate your own opinions (obviously, backed up by legal argument).

70211: Contracts [updated]

oatsandsugar —  February 16, 2011 — 129 Comments

I was just a bit lucky when it came to contracts.  Since I study Business and Law together, I had the pleasure (/was required) to study Business Law and Ethics first semester of first year at uni.  In this subject, we did almost 6 weeks of contracts work.  Entering into “70211: Contracts”, I had a frame of reference, that is, a skeleton outline of the subject in my head.  This skeleton was reinforced by our lecturer, who, in the first lecture, put up a flowchart of exactly how the subject goes (i.e. offer, acceptance, consideration … discharge, etc.).  This framework (whilst, honestly, a little messy) allowed us to know where what we were learning fit in to the subject as a whole.  It should be stuck on the inside of your notebook.

After a few weeks of studying contracts these smoke balls start looking good!

What the lecturer tells students the first week into the subject is exactly true: the “quiz” and mid-semester exams are ridiculously easy, the assignments is not too bad, and the final exam is ridiculously difficult.  However, you can gather enough marks over semester that you can walk into the final exam confident that no matter how badly you really do in the test, you should do ok overall.

The quiz in week 4 was ridiculously easy; limited, to offer, acceptance and basic consideration, it was a breeze.  Som people used notes for it, I just reread the chapters in the marvellous “Essentials of Contracts.”  That seemed to do the trick.  You should expect, with a bit of revision, to easily get a distinction in this quiz.

The mid-semester exam, similarly, is a breeze.  Multiple choice questions, not too difficult.  You are doing yourself a disservice if you don’t revise the main cases, though, since they can even ask multiple choice questions about the minority reasoning in those.

The assignment, however, is a bit of an effort.  With a bit of sweet talking and basic presentation skills (my and my partner used pun-filled old-school overhead transparencies) you can get >4/5 for the oral.  But the essay is a toughie.  I wrote a decent response, but hedged my bets a little too much by analysing a few issues broadly rather that devoting half the essay to the critical issue, which I should have done.  Focus on the issue and you should do well.  My assignment was on Non-Est-Factum.

The finals were an epic struggle.  The first shock comes when you realise that most of the law comes after the formation of the contract, and that what you though was the bulk of the subject actually only makes up Topic 2 (of 8).  The second is when you realise that the finals won’t be anything like any of the other tests you’ve done this semester: it’s mainly problem based.  This is where you appreciate listening to all the presentations over the semester, or attempting all the problem questions yourself over the same time.

It’s an open book test, but not in the classic way, its limited open book: you can’t bring in any textbooks.  The “Essentials” you have used is useless in the test, you need to make your own notes.  They need to have everything in them, because you have no textbook to fall back on.

This basically means you need two sets of notes: one set of “big,” textbook like notes, and one set of short notes, or essay plans.  I borrowed my big notes, they ended up being >400 pages.  If you want them, hit me up with an email, because it is a zip file with a few parts.

The short notes you write have to be precise, easy to read and navigate and rich in simple information (i.e. “Area –> Principle –> Case name –> Exception if applicable” — no facts, unless necessary).  You will have to use your big notes at some time during the exam, but your little notes should be used <80% of the time.

Here’s a chunk of my small notes (70211New) (they totalled 80 pages), I can’t find the full bunch as of yet, but I’m working on organising them again for you guys.  If you need them ASAP, email me and I’ll give you my hard-copy of both my short and long notes (but I only have one copy, so first come first served).

Just as a point to finish on, the lecturers swap about during the course, some are good, some are boring.  You have your tutor for the semester.  I had Chris Croese (I think that’s how it is spelled).  He was amazing, intelligent and engaging.  I thoroughly recommend him.

[update: long notes, after much popular demand.]