Microsoft Word - LAW 480 Module I, Assignment 1.1, Trimester 2, 2020 ver 1.3.docx
Page 1 of 2
School of Law
University of New England
Armidale NSW 2351
Australia
Phone XXXXXXXXXX
Fax XXXXXXXXXX2580
http:
askune.custhelp.com/
www.une.edu.au/law
LAW 480 – Remedies and Advanced Professional Skills
Assignment 1.1 (Module I) – Trimester 2, 2020
Due Date: 11:59pm UNE time Sunday 26 July 2020
Students must answer all of the six research questions listed below. Questions 1-5 are each
worth 10 marks. Question 6 is worth 15 marks. An additional 5 marks are allocated to
eferencing and bibliography. Thus, the assignment will be marked out of 70 and then
converted to a mark out of 20 (rounded to the nearest half-mark). The word limit is strictly
3000 words, excluding any questions, headings, footnotes and bibliography.
In presenting their answers, students must:
(i) give an outline of their research plan
(ii) explain the steps taken to find the relevant law
(iii) identify when and how any relevant statute law(s) came into force
(iv) reference their work according to the Australian Guide to Legal Citation (Melbourne
University Law Review Association Inc, 4th ed, 2018) and include a bibliography
(v) include legal authority for all propositions of law using pinpoint references
(vi) comply with the marking criteria and guidance contained in the unit Supplementary
Material.
Research questions:
1. Answer both of:
(a) Explain the use of the expression ‘without prejudice’; and
(b) What is the origin and purpose of a Calde
ank letter?
[10 Marks]
2. What is the ‘autochthonous expedient’? Cite primary authority for the term and the
legislation (including the relevant sections) which make the expedient work.
[10 Marks]
3. Nominate and explain a statute from each of the following:
(a) New South Wales;
(b) any other Australian state; and
(c) an Australian Te
itory
which might permit a testator to appoint a guardian for their child.
[10 Marks]
Page 2 of 2
v1.3
4. Answer both of:
(a) What is the limitation period for a claim for loss or damage on board a ship
caused by another ship; and
(b) Is an extension to the limitation available?
Refer to both Commonwealth and NSW law in your answer.
[10 Marks]
5. Find and
iefly explain the latest case in which the High Court of Australia examined
the equitable remedy of account of profits.
[10 Marks]
6. Discuss the mechanism by which treaties and conventions may become Australian
law by comparing the implementation (if any) in Australia of:
(a) the Convention for the Suppression of Unlawful Acts Against the Safety of
Maritime Navigation; and
(b) the Convention for the Unification of Certain Rules for International Ca
iage
y Air.
[15 Marks]
Adam Edwards XXXXXXXXXXJune 2020
Mod I Lecturer
Microsoft Word - Assessment 1- Final.docx
Jenna
Rich
LS480
Assignment
1
1
Jenna
Rich
XXXXXXXXXX
Advanced
Research,
Writing
and
Advocacy
–
Assessment
1
Words:
2099
(excluding
questions)
Th
in
ks
wa
p
Do
cu
m
en
t
Jenna
Rich
LS480
Assignment
1
2
Note
to
Marker:
Assent,
amendments,
commencement,
purpose
of
Acts
are
listed
in
Appendix
1.
1.
Plan:
Steps:
• From
the
textbook
‘Administrative
Law’,
I
recalled
that
privative
clauses
are
provisions
included
in
legislation
to
limit
the
scope
of
judicial
review.1
• I
defined
‘Act
of
Parliament’
using
a
legal
dictionary,
as
a
bill,
which
has
passed
all
three
readings
and
has
been
given
the
royal
assent,
and
incorporated
as
a
law.2
• I
used
the
example
from
the
text
as
a
starting
point
in
my
research.
This
was
The
Migration
Act3.
• As
the
Migration
Act
is
a
Commonwealth
law,
I
used
Comlaw
and
searched
for
‘Migration
Act’
in
the
advanced
search
option.
• As
the
text
refe
ed
me
to
s
474,
I
searched
for
this
section
and
discovered
that
the
Act
did
contain
a
privative
clause.
This
stated,
“Decisions
under
the
act
are
final”.4
• I
then
went
to
the
definitions
section
and
found
that
‘Privative
Clause’
was
defined
as
an
administrative
decision
made
under
the
act,
which
are
final
and
conclusive,
and
may
not
be
“challenged,
appealed
against,
reviewed,
quashed
or
called
into
question”.5
• I
then
used
‘note
up’
in
Austlii
and
found
the
case
of
Plaintiff
S157.6
In
this
case,
the
HCA
examined
the
potential
conflict
between
s
474
of
the
Migration
Act
and
s
75
of
the
Constitution.7
The
majority
held
that
the
constitutional
jurisdiction
of
the
High
Court
couldn’t
be
compromised
by
a
privative
clause8
and
thus
s
474
could
not
apply
in
relation
to
jurisdictional
e
or.9
1
Douglas
&
Jones,
Douglas
and
Jones’s
Administrative
Law
(Federal
Press,
Australia
2008).
2
Butt,
Peter,
Lexis
Nexis
Concise
Australian
Legal
Dictionary
(Lexisnexis
Butterworths,
Australia
2008)
p
12.
3
Migration
Act
1958
(Cth).
4
Ibid
s
474.
5
Migration
Act
1958
(Cth)
s
474
(2).
6
Plaintiff
S157/2002
v
Commonwealth
[2003]
HCA
2.
7
Commonwealth
of
Australia
Constitution
Act
1900
s
51.
8
Plaintiff
S157/2002
v
Commonwealth
[2003]
HCA
2
[5].
9
Ibid
[121].
Locate
Relevant
Textbook:
Background
Understanding
Google
Search:
Keywords
"Privative
Clauses
Australia"
Comlaw/AustLII:
Relevance,
assent,
commencement,
cu
ent.
'Note
up"
:
Attached
case
law
Combine
to
answer
question
Th
in
ks
wa
p
Do
cu
m
en
t
Jenna
Rich
LS480
Assignment
1
3
• I
used
Austlii
“This
phrase”,
“All
legislation”
with
keywords
“may
not
be
appealed
against”,
“quashed”.
This
returned
the
result
Industrial
Relations
Act10.
I
then
used
“search
this
Act”
with
the
same
key
words,
and
located
s
179
which
states
that
decisions
of
the
commission
are
final,
and
may
not
e
appealed
against,
reviewed,
or
called
into
question.11
The
definitions
section
of
the
Act
provides
that
‘decision’
includes
any
award
or
order
made.12
2.
Plan:
Steps:
• Using
a
tax
law
textbook13
I
deciphered
that
‘ca
ying
on
a
business
for
the
purpose
of
earning
assessable
income’
was
a
stipulation
of
the
Income
Tax
Assessment
Act14.
• I
used
Austlii
to
locate
the
Act,
and
“Search
this
act:
earning
assessable
income”
to
determine
that
this
provision
was
located
in
s
8-‐1
of
the
Act,
under
‘General
Deductions’15.
• I
used
‘noteup’
to
find
cases
containing
this
section
of
legislation.
• I
refined
the
search
by
ordering
results
based
on
‘date’
and
using
the
“By
Database
–
High
Court
of
Australia”
parameter.
• This
returned
the
result
of
Spriggs
v
Federal
Commissioner16.
• I
then
checked
‘noteup’
to
see
if
this
case
had
been
more
recently
refe
ed
to,
which
it
had
in
Anstis17,
however
this
decision
did
not
specifically
elate
to
ca
ying
on
a
business
for
the
purpose
of
earning
assessable
income.
3.
Plan:
10
Industrial
Relations
Act
1996
(NSW).
11
Ibid
s
179.
12
Ibid.
13
Woellner,
Barkoczy,
Murphy
and
Evans,
2014
Australian
Taxation
Law
(CCH,
24th
edition,
Australia,
2014).
14
Income
Tax
Assessment
Act
1997
(Cth).
15
Income
Tax
Assessment
Act
1997
(Cth)
s
8-‐1.
16
Spriggs
v
Federal
Commissioner
of
Taxation
and
Riddel
v
Commissioner
of
Taxation
[2009]
HCA
22.
17
Commissioner
of
Taxation
v
Anstis
[2010]
HCA
183.
Locate
Relevant
Textbook:
Background
Understanding
Google
Search:
Keywords
"Earning
Assessable
Income,
Ca
ying
on
Business"
Comlaw
AustLII:
Relevance,
assent,
commencement,
cu
ent.
'Note
up"
:
Attached
case
law
Combine
to
answer
question
Th
in
ks
wa
p
Do
cu
m
en
t
Jenna
Rich
LS480
Assignment
1
4
Steps:
• Using
a
oad
Google
search
with
keywords
“Personal
Property
Securities
Australia”
I
determined
that
security
of
personal
property
is
dealt
with
under
the
Personal
Property
Securites
Act18.
• I
found
this
Act
using
Comlaw
and
determined
that
it
was
introduced
to
simplify
and
unify
management
of
personal
property
security
interests.
• I
used
a
“NSW
HANDSARD”
search,
using
key
words
“Personal
Property
Securities
NSW”.
Through
this,
I
located
the
PPS
(Commonwealth
Powers)
Act19.
• I
used
a
NSW
Legislation
search
to
determine
that
the
act
was
created
to
efer
certain
matters
of
security
interests
in
personal
property
to
the
Commonwealth
Parliament20.
Therefore,
this
is
the
NSW
act
which
enables
the
PPSA.
• I
then
located
the
Second
Reading
Speech
of
the
Bill,
which
confirmed
that
the
Act
was
created
through
discussion
with
all
Australian
jurisdictions,
to