• Answer the following questions using the ILAC method of problem solving.
Question 1 [15 marks]
Maria Chiquita graduated from the IvyHeath Cooking College with a major in thermo-mixing. Immediately after graduating, she set up her own cooking business ( ‘Thermodelicious’). In early 2017 things were going really well and she was thinking about expanding her business. She met Amelia Knowsitall, an accountant and financial adviser. They discussed Maria’s expansion plans and Amelia agreed to prepare a business plan for Maria and her growing business. Amelia advised Maria that she was in a sound position to expand and recommended that she borrow money to set up a cooking store in a trendy part of Bleak-heath. Maria relied on Amelia and acted on her advice. In July 2017, she borrowed $49000 from Ripoff Credit, a small credit union that provided a loan and overdraft facilities. Maria then signed a five-year lease, bought seven additional thermomixers and hired Tracey’s Designs & Graphics to design a webpage for her. Then things went sour. Amelia admitted that she had not adequately factored in her pre-existing debts, had underestimated the significant establishment costs associated with setting up a business in Bleak-heath. Amelia explained to Maria that in addition to reviewing Maria’s financial position, she also consulted her tarot cards on the matter and the reading showed that Maria’s business would reach financial glory. Maria has suffered loss as a result of this advice. She is unable to pay Ripoff Credit.
Maria’s boyfriend, Nathaniel, and his girlfriend Paloma were returning home after leaving their favourite pub, The Scandalous Heath. There is a pedestrian path that leads directly to the apartment where Nathaniel lives. It would take about one hour and a forty five minutes to make the journey. Because Paloma is extremely tired and Nathaniel is dying to see his other lover, Consuelo, the pair decide to borrow a couple of bikes from their friend Dan Brownie, to ride along the cycleway which runs parallel to the freeway to the city. The cycleway will enable them to reach Nathaniel’s apartment in about 25 minutes. Dan advised them to use the cycleway as opposed to the actual freeway. They are feeling adventurous and decide to disregard Dan’s advice and ride along the freeway. There are several notices which read “DANGER ! DO NOT WALK OR RIDE ALONG THE FREEWAY”. They are not wearing fluorescent or reflective garments and Nathaniel’s bike is missing its red rear reflector. Both bikes lack front lights although Paloma’s has a flashing tailing. In the meantime, a car driven by Julia comes around a bend in the freeway. Julia takes her eyes off the road for a moment as she rummages through her bag to locate her phone which alerted her that she got a new match on' Fling-der', one of her many dating apps. Her car veers to the left, but Julia is unable to manoeuvre the vehicle which crashes into Nathaniel and Paloma’s bikes, injuring Nathaniel. He broke three of his limbs.
Advise Maria and Nathaniel on any liabilities arising from these facts, citing relevant statutory and case law authority, using the ILAC format.
Question 2 [15 marks]
Jay LeCrasstulua owns several Tuvaluanese restaurants in New South Wales. He and his family has solicited your advice as to their contractual liabilities and rights arising out of these circumstances:
On 20 September, Jay meets Rosita over lunch. Rosita owns a small dairy farm called ‘The Mighty Cow'’. After some negotiations, Rosita offers to sell Jay 200 kgs of Wagyu beef for $3500. She also tells him that she will keep the offer open for the next 24 hours. Two hours later, Rosita receives a call from Angelo who offers $3700 for the meat. She immediately accepts Angelo's offer. Jay calls three hours later ( within the 24 hours period) and informs Rosita that he accepts the offer, want his meat delivered and that he will sue her for breach of contract if she does not comply with their deal.
Jay agrees to buy a new truck for home deliveries. He approaches Mario's Trucks and Motors Pty Ltd and makes enquiries about a couple of vehicles. He agrees to purchase a Pantech 2018 for $60,000. After the contract is signed he asks Jeff, the sales manager, if they will provide the first service free of charge. Jeff agrees. Two months after the purchase, the car needs to be serviced and Jeff is reluctant to honour his promise.
Jay commenced negotiations to lease some commercial premises to be used for their new restaurant in Leura. Part of the negotiation concerned the ability of Jay to demolish a wall in order to remodel the interior and build an oven. Nacho, the landlord, shook Jay's hand and told him they had a deal and that he could go ahead and get started. Jay took a large bank loan to finance the re-modelling. Four weeks later, Jay received a letter from Nacho indicating that he did not intend to proceed with the lease. Jay has already spent $150 000 on the remodelling but has not received a signed lease as yet. He has also hired two International chefs to work at the new restaurant.
Jay's parents, Mr and Mrs LeCrasstulua, migrated to Australia from Tuvalu in 1967. They are dependent on their two sons, Jay and Ricardo, for advice and support. They have limited education, no business acumen and poor language skills. Their only income is their age pension. They own their home which is valued at around $750,000. Ricardo is a charming but fleckless business man who is always on the verge of something great. In 2017, he needed $265,000 to pursue a dot com opportunity that would make him as rich as his brother Jay. He is able to borrow money from The Con Bank but only after he persuades his parents to act as guarantors. He misleads his parents as to the extent and purpose of the loan. The bank is unaware of this. After investigating their financial position the bank manager meets with Mr and Mrs LeCrasstulua and go over the guarantee contract. He asks whether they had any questions and when they do not, they signed the documents as required. Ricardo uses the money in an internet company. The company becomes insolvent and Ricardo loses his entire investment. When he is unable to repay the loan, Com Bank looks to the parents to honour their obligations as guarantors.
Assume that you are Jay’s solicitor and that he has asked you for legal advice. Advise him as to what contractual liability, if any, he and, or his family have in the above circumstances, citing relevant case law authority and using the ILAC format.
This assignment is designed to assess the following subject learning outcomes:
o be able to investigate the different sources of Australian law in order to contrast these sources and explain their significance and interrelationships when applying them to legal
o be able to demonstrate knowledge of tort and contract law by identifying the relevant issue(s) arising out of novel factual situations, stating the relevant legal principles, and explaining how these relate to the legal issue(s), in addition to suggesting potential remedies when providing a conclusion;
o your ability to conduct basic legal research.
This assessment is designed to have students critically examining the problems presented in the two questions. They use their research, and other legal skills to discuss and answer the questions, demonstrating knowledge of tort and contract law. Students need to identify the relevant issue(s) arising out of the two novel factual situations, state the relevant legal principles, and subsequently explain how these relate to the legal issue(s), in addition to suggesting potential remedies when providing a conclusion. Marks will also be awarded according to the following criteria:
CRITERIA HD DI CR P FL
Students are required to answer two problem type questions in order to demonstrate: To meet this level you will achieve a cumulative mark of 85-100%. A mark in this range indicates that a student: To meet this level you will achieve a cumulative mark of 75-84%. A mark in this range indicates that a student: To meet this level you will achieve a cumulative mark of 65-74%. A mark in this range indicates that a student: To meet this level you will achieve a cumulative mark of 50-64%. A mark in this range indicates that a student: At this level you will obtain a mark of 0-49%. A mark in this range indicates that a student:
Identification of relevant legal issues
Correctly identifies all legal issues and formulates them clearly with consideration of all links to relevant law, with no errors. Correctly identifies al l legal issues and formulates them with consideration of links to relevant law, with only minor errors. Identifies and correctly formulates most major legal issues, taking into consideration most links to relevant law. Identifies some legal issues, with some errors in formulation. Considers some links to relevant law. Identifies no relevant issues or only a few of them. Some of these may be unclearly formulated. Considers few contextual links to relevant law.
Explanation of law and citation of relevant legal authority
Provides a complete explanation of the law, with no errors. Explains all relevant legal authority. Provides an explanation of almost all points of the law, substantiated by most of the relevant authority with only minor errors. Provides an explanation of most points of law, with few errors, substantiated by citation of most of the relevant legal authority with few errors. Provides a basic explanation of the law, but with some errors, substantiated by limited legal authority. Provides incorrect or limited explanation of the law using no legal authority.
Application of legal principles to the facts
Applies the law to the facts so as to address all issues with no errors. Argument discusses linkages between facts and the law and considers counter-arguments. Conclusion clearly draws together advice. Applies the law correctly to the facts so as to address all issues, with only minor errors. Argument discusses linkages between facts and the law. Conclusion clearly draws together advice. Applies the law correctly to most issues arising from the facts, but with some errors. Argument summarises application of the law. Conclusion summarises advice. Makes a basic attempt to apply the law to the facts, but applies wrong law and / or contains significant errors in the application.. Resultant legal advice is incomplete. Paper does not correctly apply law to the facts and / or applies incorrect law. May be descriptive, rather than putting forward a reasoned argument.
Compliance with the Style Guide and overall structure.
Uses Style Guide comprehensively, accurately and consistently. Uses ILAC model. Extremely well structured and organised, with one main argument per paragraph, supported by well-written supporting sentences. Uses Style Guide accurately and with only minimal errors.
Uses ILAC model. Well structured, with arguments clearly differentiated between paragraphs Use of Style Guide, with some errors or lapses. Uses ILAC model and is clearly structured. Limited or inconsistent use of Style Guide. Some attempt at use of ILAC model in structuring of answer but with errors.
Poor, inconsistent or inaccurate use of Style Guide. Poorly structured. Inadequate or no use of paragraphs. May have disregarded the ILAC model.
Written expression and editing. Uses appropriate academic writing which is formal, impersonal and which contains no spelling, grammar and punctuation errors. Paper demonstrates careful proofreading. Uses appropriate academic writing which is formal, and impersonal with only very minor spelling, grammar and punctuation errors. Paper demonstrates careful proofreading. Uses appropriate academic writing which is formal and impersonal, with a few spelling, grammar and punctuation errors. Paper demonstrates evidence of proofreading. Significant spelling, grammar and punctuation errors but the paper is readable and demonstrates some attempt at proofreading. Poor grammar, spelling and/ or punctuation. Paper gives no evidence of having been proof-read.
Please comply with the following rules:
1. Do not re-state the question.
2. Use in-text referencing. Do not use footnotes.
3. Names of statutes should be italicised, and followed by the jurisdiction not in italics, for example: Acts Interpretation Act 1901 (Cth). Note the abbreviation for ‘Commonwealth’ is ‘Cth’ not ‘Cwlth’.
4. The names of the parties must be italicised, but the citation must not, for example: Smith v Jones (1967) 345 CLR 34. You must give the full citation of a case on every occasion that you mention it.
5. An in-text reference to a book should be structured as follows: (Latimer, 2010, p. 75). There is no need to put the author’s initial. Note the positioning of brackets, stops and commas. You use ‘pp.’ only if referring to more than one page. If you are referring to a book with more than one author, the in-text reference would be as follows: (Smith et al, 2002, p. 78).
6. Do not start a new line simply because you are starting a new sentence.
7. Be careful of apostrophes: directors = of a director, directors' = of many directors, directors = many directors. Also particularly prevalent is confusion between its (it possessive) and it's (contraction of -it is-).
8. The following words always start with a capital letter: Commonwealth, State, Act, Bill, Regulation, Constitution, Parliament. Do not unnecessarily capitalise other words.
9. One should not use terms such as can't, won't, don't and shouldn't, neither should one use -i.e.- and -e.g.- in formal writing.
10. A sentence must always begin with a full word and a capital letter – so a sentence would start ‘Section 55 says…’ not ‘S 55 says…’ or‘s 55 says…’
11. Start each paragraph on a new line, and leave a clear line gap after the preceding paragraph.
12. You must put page numbers on your assignment.
13. Quotations and excerpts from legislation which are longer than two lines should be indented from the rest of the text in a separate paragraph. The text in quotations should not be in italics.
14. You must end your assignment with a bibliography that is divided into three parts, listing statutes, cases and books / articles.
15. A listing of a book in a bibliography should appear in accordance with the following format: Latimer, P (2010). Australian Business Law, 29th ed, North Ryde: CCH. If listing a book with multiple authors, do so as follows: Heilbron, G, Latimer, P, Nielsen, J and Pagone, T (2008). Introducing the Law, 7th ed, North Ryde:CCH.
16. When listing statutes at the end of your assignment you should conform to the format: Acts Interpretation Act 1901 (Cth). List the statute only once – you do not list individual section numbers relied on. You should not list textbooks as the source of Acts – the Act itself is its own source.
17. When listing cases conform to the format: Gordon v Richards (1976) 123 CLR 32.
18. When listing article conform to the format: Jones, J 'The new analysis of law' (2010) 4 Journal of Recent Law 34.
19. Make sure that your sentences are grammatically correct –it may be useful to read your assignment out loud if you have any doubts about this.
Please do not consider the Competition and Consumer Act 2010 (Cth) or the Sales of Goods Act 1923 (NSW) in answering these questions, as we have not yet covered that topic. Be advised that the word limit of 2,000 words is a total for both questions (not 2,000 words for each question). Please make sure you follow the presentation and stylistic rules contained under 'Presentation' below.
Familiarise yourself with the ILAC model by complying with the weekly activities. These activities have been designed to teach you how to structure a legal analysis of a problem based question. ILAC stands for Issue, Law, Application, and Conclusion. It allows us to structure legal analysis. Use ILAC as a tool for organising your thinking and your writing. Think of it as a weaving loom that allows you to support the threads of your argument. Remember that when using ILAC you must:
1. Identify the legal issue. The issue is the most important element in the analysis and must be stated in a way to show what is in controversy. You are required to articulate the issue by creating the legal question presented by the facts. To find the issue, ask: “what is in controversy in these facts.” You should use the following language: “The issue is whether …”
2. (Relevant) Law (cases and legislation). After you have identified the issue, you must state the relevant law. The law and the facts are inextricably linked. Your analysis of the facts will not make sense unless you identify the law that is required to answer the question that contains the legal issue.
3. (Analysing) Applying the law to the facts. You simply match up each element you have identified in the law (in order) with a fact. You may use the word “because” to make the connection between law and fact. Using the word “because” forces you to make the connection between law and fact. You may also use the words “as” and “since”. These serve the same function as “because”.
4. Conclude each issue before drawing your final overall conclusion. There is no right or wrong answer, only logical analysis based on the rule and the facts that then leads to a reasonable conclusion.
Preparation for this assignment
• Read Topics 3-6 (Negligence and Contracts) in the Modules, taking detailed notes and completing all exercises and questions as you study.
• Work through the -ILAC Method- presentation in the How to Succeed in a Legal Subject module, and watch the How to Succeed video there.
• Participate actively in the forum discussions of the Business Law in Action scenarios for each module. This will give you an opportunity to practice writing with the ILAC method, to learn from other students' writing, and to get feedback and guidance from your lecturer. Participate in the Law Assignment Grading Activity to familiarise yourself with the marking rubric and expectations. In this activity, you will use the marking rubric to mark two student answers to a problem solving question similar to Assessment Item 2. Then you will discuss the process with your lecturer and other students, so you fully understand how your answer will be marked. This understanding should guide you in preparing an answer that meets your lecturer's expectations on this assessment
Further guidance and general observations
Being the subject convenor and the task moderator has provided me with an opportunity to become aware of the most common mistakes made by students when they are preparing and drafting their assignment. The comments below contain some of my general observations:
1. Some students struggle to follow the guidelines provided to them orally and through the subject outline. It is important that students contact their lecturer, if they require further clarifications about the task before they start drafting it. Also, make sure that you proofread and edit your assignment before submitting it to the marker. The folder ‘Assessment two’ contains a series of documents that have been especially created to assist you with your assignment.
2. Do not write an essay. Some students submit an essay and totally disregarded the ILAC model. Please check the materials posted electronically about the model and the samples which show how it can be used effectively. See also the model answers
3. Headings and subheadings are essential. Use the headings of the ILAC model. You may wish to use the following headings and subheadings:
The same structure can be used for question two. You may also opt for addressing both scenarios simultaneously, that is, one ILAC per question.
4. Students tend to include too many ideas/ arguments in one paragraph. They should discuss one argument per paragraph and such argument should be developed logically, and should also be supported by a primary source. Please substantiate your arguments. Primary sources are cases and legislation.
5. Some papers are comprised of a series of general assertions or statements totally unsupported by a legal source.
6. Instead of using primary sources (cases and legislation), some students use comments extracted from the textbook to support their arguments. They also cite the book as law, when in fact students were taught during the first two weeks of the semester that the textbook is only a secondary source. If you cannot find primary sources, then it is best to cite the book rather than nothing. Not referencing your authorities may be considered as plagiarism.
7. Some students fail to refer to the Civil Liability Act and its relevant provisions. While others refer to the Act in a very vague way, and without pinpointing its relevant sections or subsections. There is no need to copy a whole section either. You can summarise its content instead and insert the respective reference to it inside brackets.
8. Students need to understand that although some of the provisions of the Civil Liability Act are a re-statement of the common law, cases are still important and must be used in a persuasive way. These two sources of law should be used together.
9. If you are dealing with a case scenario, please do not stretch the facts. Work only with the facts that you have been given.
10. Do not discuss the facts of any case. When making reference to some case law, several students explain the facts of these cases instead of using their rationes only. Remember that the ratio of a case is the only binding part of the case. It is the reason for the decision.
11. It is not recommended that students copy the questions to their papers. Think about the word limit.
12. Read the marking guide carefully before starting the drafting process. You must also read the Style Guide and the Presentation Guidelines contained in the Subject Outline.
13. It is preferable for students to use cases discussed by the textbook and the lecture notes rather than cases found somewhere else. Students may inadvertently assume the risk that cases, which were not discussed during class, may not be entirely relevant to their scenarios, or these may lack judicial strength as precedents.
14. Proof read your paper before submitting it.
Please feel free to contact your lecturer should you require further clarification on this task.