LAW00004 — Company Law S2 2018
Research Assignment Details:
Due: 27 August 2018[footnoteRef:1] [1: The assignment may be submitted up until 11:59pm on the due date. ]
Length: 2,400 words[footnoteRef:2] [2: The word count can be exceeded by 100 words only.]
Weighting: 50%
Submission method: turnitin
(i) In the context of corporate law, discuss the following statement and explain the fiduciary concept in detail:
“Since the decision of the High Court in Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64, it has been accepted in this country that a fiduciary duty arises out of an undertaking, express or implied, by the person incu
ing such duty.”[footnoteRef:3] [3: Oliver Hume South East Queensland Pty Ltd v Investa Residential Group Pty Ltd [2017] FCAFC 141 [33] (Dowsett J).]
(ii) Discuss examples that demonstrate this fiduciary concept in each of the following areas, refe
ing to case law and statute as necessary:
(a) The general law (as it relates to the formation of a company);
(b) A Partnership Act (in an Australian State or Te
itory); AND
(c) The Corporations Act 2001 (Cth).
Total (50 marks)
Please note the material on pages 8 – 11 of the Unit Information Guide regarding the Assessment.
Marking criteria
Important information:
Consider the following information carefully before starting the assignment.
The assignment will be marked according to the following criteria.
Research (40%)
This assignment requires a comprehensive review of the primary law sources (legislation, case law) as well as a review of secondary sources (for example textbooks, journal articles, case commentary, explanatory memoranda, Law Reform Commission reports). The research should clearly identify the relevant issues and legal principles and support the analysis. In doing so, the work of others should be co
ectly referenced and appropriately acknowledged.
Analysis (50%)
The information gathered should be analysed to evaluate the relevant legal principles. The argument should be developed logically through clear analysis and application of the relevant legal principles to resolve the issue(s). This analysis should also:
· integrate and evaluate relevant knowledge from the material covered in this unit
· develop and sustain a concise and convincing legal argument through to a logical conclusion, and
· importantly, answer the specific question asked.
Technical aspects (10%)
The paper should:
· co
ectly reference and acknowledge sources. Please note the reference system adopted in this assignment can be either the AGLC 3 (Australian Guide to Legal Citation 3rd ed) or the Harvard referencing system. The referencing system adopted must be used co
ectly and consistently;
· use fluent, clear, concise writing that contains clear expression, co
ect grammar, syntax, sentence structure and spelling; and
· use headings and subheadings (where appropriate), an introduction, conclusion and bibliography or reference section.
Page 1 of 2
Presentation1
1
LAW00004
Company Law
SCHOOL OF LAW & JUSTICE
Session 2, 2018
RESEARCH ASSIGNMENT
• Weighting: 50%
• Due : By 11:59pm 27 August 2018
• Length: 2400 words (+100 maximum)
• Submission method: turnitin
Note: The headings, footnotes (or in-text referencing),
ibliography & coversheet do not form part of
the word count.
Research Assignment
2
Marking Criteria
The assignment will be marked according to the
following criteria:
• Research (40%)
• Analysis (50%)
• Technical aspects (10%)
• Go to the Assessment details on Blackboard.
'Research Assignment’
Assignment Structure
• Introduction
• body and
• conclusion.
What is required?
• The focus is on explaining the fiduciary concept in
detail – the statement helps you do this.
• Give specific examples from (a), (b) & (c).
• Consider using subheadings to identify to the reader
(and importantly the marker) what you are
discussing. (refers to (a), (b) & (c) of the assignment
topic).
3
'Research Assignment’
Consider the following headings as a guide:
• Introduction
• Fiduciary concept.
• the general law - promoters
• Partnership Act
• Corporations Act 2001 (Cth)
• Conclusion
'Research Assignment’
• As the name ‘research Assignment’ suggests
your discussion and analysis should be supported
y a depth of research.
• Important: note the marking criteria.
• To avoid plagiarism you will need to co
ectly
cite the source of the information.
• Direct quotes require inverted commas and
pinpoint citation .
• The assessment item requires a depth of
esearch. You are expected to cite the
esearch, including cases that discuss the
fiduciary concept in (a), (b) & (c).
Cite the source
• Cite material co
ectly
• Use inverted commas around ‘quoted material’ and
pinpoint citation (para & page numbers).
• Quoted material is when you use exact words from
an original source.
• Paraphrased or summarised material (co
ectly
cited) in a manner to develop your discussion is a
etter approach to excessive quoting.
4
**Read the Assignment Topic carefully.
• Give examples from:
- the general law (Australian law) (as it relates to the
formation of a company); (ie. Case/s)
- the Partnership Act; (ie. section/s and case/s) AND
- the Corporations Act 2001 (Cth) (ie. section/s and case/s
• Do not forget about the assignment statement.
• Focus on Australian law (but English law could also
e relevant). Not USA law.
.
Research
• The main focus of you discussion should be on
explaining the 'fiduciary concept'.
• Your research should include cases and
commentary.
• Case law assists to demonstrate the legal
principles.
• The commentary should include text books and
journal articles.
• Avoid writing out large extracts from the
legislation.
• Avoid writing out large extracts from the cases.
• Use cases and material to support your own
discussion on the fiduciary concept.
'Research Assignment’ – case law
• Use of ‘case law’ under each example (a,b & c)
• Case law will assist to demonstrate your
understanding and explanation of the fiduciary
concept.
• The term ‘case law’ includes general law cases and
cases that interpret the relevant statutory provisions.
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'Research Assignment’ – case law
• You are not expected to do in depth case analyses.
• When discussing cases avoid going off tangents.
Stay connected with the assignment topic: (assess
word count allocation.)
• For the purpose of the assignment the main thing
you should get from the cases is the legal principles
(what the law is).
Assignment & case law
• For example in Aequitas v AEFC [2001] NSWSC 14
[346-348] (Justice Austin J) states the legal principles
elating to identifying promoters.
• It is helpful to provide a
ief description what the
case was about and proceed to discuss the legal
principles noted in the case.
'Research Assignment’ – case law
A
ief note on what the case is about might only be
one sentence or even a few words.
For example the words “in Gluckstein v Barnes
[1900] AC 240, Lord Halsbury said (at 247)…”
could be restated with a
ief factual note as follows:
“in Gluckstein v Barnes [1900] AC 240, a case
involving promoters making a secret profit, Lord
Halsbury said (at 247)…”
.
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Referencing
• You can use either Harvard or AGLC3
• If you are using Harvard use a bibliography (all
sources consulted).
• If you use footnotes (AGLC3) use a reference list
(only sources cited).
How do I reference the Partnership Act in
eference list?
In NSW
• Partnership Act 1892 (NSW) (hereinafter called
Partnership Act) OR (‘Partnership Act’)
• s 1 Partnership Act 1892 (NSW)
• ss 1 and 2 Partnership Act 1892 (NSW)
How do I reference the Corporations
Act?
• Corporations Act 2001 (Cth) (hereinafter called
Corporations Act) OR (‘Corporations Act’)
• s 124 Corporations Act 2001 (Cth)
• ss 124 and 125 Corporations Act 2001 (Cth)
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Pinpoint Referencing - Cases
• Charlton v Baber [2003] NSWSC 745' is fine for the
eference list.
• However when you reference it in your discussion
you should identify the judgment and paragraph
number. This is essential for direct quotes.
• For example Charlton v Baber [2003] NSWSC 745 [52]
(Ba
ett J), note [52] represents paragraph 52 of
Justice Ba
ett’s reported judgment.
How to reference the partnership material
provided on BB?
• The reference is Turner C and Trone J, Australian
Commercial Law, 30th ed, Thomson Reuters, 2014
• Remember - Where relevant - add the paragraph
and/or page number.
Is it OK to reference Wikipedia?
• It is prefe
ed if you research from an authoritative
source.
• If you are using content from Wikipedia you will have
to reference it otherwise you may find yourself facing
questions regarding academic misconduct
(plagiarism).
• Students who use Wikipedia as their main source of
information may find it difficult to satisfy the research
equirements of the assessment task.
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Locating Partnership law cases
(especially re fiduciary duties?)
• Try the 'noteup' tool in austlii.
• For example ‘Go to’ the Partnership Act in austlii
• open a relevant sections.
• check on the 'note-up' tab
• view the cases.
Does director's fiduciary duty include “Duty of
Obedience” & “Duty of Care”？
• Under Australian law, fiduciary duties do not include the
duty of care.
• ‘Duty of care’ is owed under the common law and equity
ut it is not fiduciary.
• Australian courts have not identified a specific ‘duty of
obedience’. However the fiduciary duties are cast in a
manner to avoid disobedience.
Locating cases via austlii
• Try the ‘advance search' tool in austlii.
• For example ‘Go to’ the home page
in www.austlii.edu.au
• Check ! in the search box and check ‘advanced
search’.
• Check ! next to Select the database(s)’ and check
! next to ‘All Case Law Databases.’
• Enter search term, for example, ‘fiduciary and
partnership’
• view the cases.
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Relevant Jurisdiction?
• Ensure your research applies to Australian law. The
fiduciary law in the USA is not the same as Australia.
There are similarities and there are also differences.
• UK law is fine but avoid citing the US position unless
you are able