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Legal Institutions and Process
Assessment 2: Annotated Bibliography
Due: By 9 a.m. on Monday of Week 4 (NSW time)
Weighting: 40%
Word Limit: 1,500 (excluding first and second cells, and regular bibliography)
Learning Outcomes
Assessment 2 assesses the following Learning Outcomes:
(2) describe the ways in which formal law-making bodies function in the Australian context
(3) demonstrate familiarity with the formal and informal institutions and processes which shape the development of Australian law
(7) engage in academic research utilising and acknowledging a variety of sources.
TASK INSTRUCTIONS
You work in in a legal practice and ultimately will be required to provide advice to the firm’s client, Minh. Minh has detailed the following facts.
Factual Scenario
Nutty Nightwear Pty Ltd is a company which specialises in the sale of nightwear items for children. The company operates in, and is registered
in, the state of Victoria. Nancy is the Director of the company.
Just Sew! Pty Ltd is the company which manufactures the nightwear items for Nutty Nightwear. Just Sew! also operates in, and is registered in,
Victoria. Justin is the Director of the Just Sew!
Nutty Nightwear Pty Ltd designed new pyjamas for children (sizes 00-14) which can sold as top and bottom together or as nightwear separates.
In her capacity as Director, Nancy sent a written order for 1,000 pairs of pyjamas to Justin in his capacity as Director of Just Sew! Nancy
specified the pyjamas were to be made from a new fabric that she had not used before. Nancy was well aware that under the Australian
Product Safety Laws mandatory standards for nightwear for children the new fabric is categorised as a Category 4 fabric and so she provided
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clear instructions to Justin to attach a warning label that was in accordance with Category 4 fabric. Nancy even specified to Justin that he must
use a Category 4 High Fire Hazard Label (including black ink on a red background) and that a label must be attached to each individual item.
On the basis of the order, Justin manufactured 1,000 pairs of pyjama and sent them to Nancy. The pyjamas have the Nutty Nightwear Pty Ltd
logo printed on them.
When Nancy inspected the pyjamas she discovered that the warning label was a low fire hazard label that is for fabrics in Categories 1- 3.
Nancy telephoned Justin and told him that she refused to pay because of the labelling issue and she returned the pyjamas to Just Sew! on the
same day.
Just Sew! incurred costs of $30,000 to produce the order. Justin realised it was his mistake for using old labels and was afraid of losing further
contracts with Nutty Nightwear Pty Ltd, so he accepted the returned pyjamas. At the same time he did not want his company to have to cover
the $30,000 in production costs so, rather than destroying the non-compliant pyjamas, he decided to sell them via an online auction site as a
way to recoup the production costs.
And so Justin advertised the pyjamas as a ‘Buy It Now’ purchase on a wholesale online auction site. To push things along a little, he included
the following as part of the advertisement:
This advertisement will automatically close in ten seconds. But if you click to buy these original and newly released designer pyjamas within that time
then they will be available at the fabulously low price of $30,000!
To create the advertisement and to enter the auction, and to provide the item description and bidding details, Justin provided the name, ACN
and contact details of Nutty Nightwear Pty Ltd. But for the payment, he used the account details of Just Sew!
Minh is a sole trader of a small children’s clothing store in Victoria and she recognised the company name of Nutty Nightwear. She had used
the company’s products in the past and had been pleased with their quality and how well they had sold, so she put in a bid of $30,000 and
secured the purchase.
Justin was keen to get the pyjamas off his premises so he delivered the goods to Minh on credit. When the pyjamas arrived, Minh inspected
them and was dismayed to discover the warning label on each item was for fabrics in Categories 1-3 and not Category 4 as it ought to have
been. She realised she could not legally sell the pyjamas as they were.
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Minh now seeks your firm’s advice about any possible methods of recourse against Just Sew! Pty Ltd at common law, equity and statute law.
The file has been allocated to you.
You must now undertake some initial legal research to:
| (i) (ii) (iii) |
locate ten sources that are relevant to advising Minh, cite those sources and to demonstrate how you found them, and undertake an initial analysis of each source to indicate how and why it might assist Minh to achieve any remedies potentially available to her. |
* TO COMPLETE THIS ASESSMENT TASK YOU MUST READ (B) NOTES NECESSARY TO COMPLETING ASSESSMENT 2 BELOW
(A) GENERAL/CONTEXTUAL NOTES WITH RESPECT TO ASSESSMENT 2
Assessment 2 is a task to develop your legal research and writing skills, and to start you on the track of thinking about how the law can be
applied in different situations (or not). The focus is on training you to be able to look at a factual situation and to make an assessment about
what are the material facts (that is, the legally relevant facts) that have the potential to enliven areas of the law and:
| |
to locate some of that law using legal research steps to cite those sources in accordance with the AGLC style to give an initial account about why there is an arguable fit (between those facts and the source of law that has been cited as potentially applicable). |
The ability to make the assessment about what is potentially applicable law comes with a little knowledge of the law and with experience. And
the fact that you are not expected to know the potentially applicable law in this task in advance or in detail is the reason you have been
provided with the areas of law that are potentially applicable (see point (2) below). You will be assessed primarily on (please see the Marking
Guide also):
how you cite sources of law
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demonstration of legal research steps demonstrate the development of a relevant approach to connecting and considering the relationship between facts and potentially applicable law. |
In terms of the relationship between Assessment 2 and Assessment 4, the following is noted. The ultimate purpose of Assessment 4 is to
consider and to assess the ACCC statement provided in the instructions for that task. However, rather than undertaking that consideration and
assessment in the abstract, you are to use the factual scenario of Assessment 2 (using the research you do for this task – and you can add new
research if you wish) to provide some initial grounding for the Assessment 4 discussion. This means that in Assessment 4 you can start by
discussing what your client’s situation is likely to be and then to use that discussion as a reference point when you move on to the main
purpose of Assessment 4 – which, as noted, is to consider what the ACCC statement says. In other words, use your client’s situation as a
platform to consider and to discuss how well the Anglo-Australian legal system is working for people in situations similar to your clients,
including some overview of the historical development of this law and some critical assessment of how well it is working. There is not right or
wrong answer in this task – it will be the quality of your argument and discussion that matters.
(B) NOTES NECESSARY TO COMPLETING ASSESSMENT 2
So, for Assessment 2, read the factual scenario carefully.
| (1) | Research the law that arises from these facts. You are instructed that the factual scenario potentially enlivens laws primarily in the areas of: |
| (i) (ii) (iii) (iv) |
contract law – including remedies in contract law and/or equity duress in equity and/or harassment or coercion in statutory consumer law misleading and deceptive conduct together with public enforcement action in statutory consumer law product safety labelling standards together with public enforcement action in statutory consumer law. |
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Note:
these are the areas of law to consider – remember a part of your task is to make a final decision about which areas of law are
ultimately applicable to the facts.
| (2) | As a starting point for your research you are referred to the following materials: |
| (i) | Sweeney, Brendan, Jennifer O’Reilly and Andrew Coleman, Law in Commerce (LexisNexis, 6th ed, 2016) Chapter 4 ‘Making the Contract: Offer and Acceptance’ [4.22] (provided as Required Reading 3.7) Sweeney, Brendan, Jennifer O’Reilly and Andrew Coleman, Law in Commerce (LexisNexis, 6th ed, 2016) Chapter 8 ‘Remedies in Contract Cases’ [8.2] [8.17-8.24]; [8.38]; [8.46] (provided as Required Reading 3.8) Paterson, Jeannie, ‘Consumer Affairs: Introducing the new, National Australian Consumer Law’ (2011) 36(1) Alternative Law Journal 50 The Australian Consumer Law: A framework overview. Note: this material is accessible as a Word document only. The link to the Word document appears on line 4 of the text (note the link to the PDF document does not work): https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwj3x5uRnMfsAhXHbX0KHUUuDDIQFjAAegQIBhAC&url=h |
| (ii) | |
| (iii) | |
| (iv) |
ttps%3A%2F%2Fconsumerlaw.gov.au%2Fsites%2Fconsumer%2Ffiles%2F2015%2F06%2FACL_framework_overview.docx&usg=AOvVaw3fPMy7
cQbRGXL9KdS5UxFb
| (v) | The Australian Consumer Law: A Guide to Provisions: https://www.publications.qld.gov.au/dataset/1b96f0f9-1d84-44b4-9448- 7d871dbd3b9d/resource/a9a1cc75-3b45-44fb-a08d-33d1e6ac7c10/fs_download/aclguidetoprovisions.pdf Australian Consumer Law notes prepared by Digby Von Muenster Law – see documents attached to Assessment 2 instructions |
| (vi) |
(vii) Australian Competition and Consumer Commission, ‘Ingredients Labelling on Cosmetics: supplier guide’
https://www.accc.gov.au/publications/ingredients-labelling-on-cosmetics-and-toiletries-supplier-guide
(viii) Beaton-Wells, Caron ‘Private Enforcement of Competition Law in Australia – Inching Forwards?’ (2016) 39 Melbourne University
Law Review 681 (Note: this article is about competition law but it does have broader contextual value for Assessments 2 and 4
which are based on/oriented towards consumer law. This article is especially useful for Assessment 4).
Note:
| | these materials contain more than is relevant to the facts of the scenario; part of your task is to analyse which parts of the materials are relevant. |
(3) Compile an Annotated Bibliography in which you undertake research and analysis for relevant law and include the ten most relevant
sources located.
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(4) Your sources must include at least one source from each of the following categories:
| (i) (ii) (iii) |
a case legislation, and a secondary source. |
(5) It is recommended that you use the template provided. The template is already set out for ten sources and includes cells for the three
fields of information required for each source. Note:
| (i) (ii) |
the top cell requires you to reference the source according to the AGLC referencing style for Bibliographies; the middle cell requires you to demonstrate how you located the source contained in your Bibliography in a short list underneath each source. Document your research steps in an abbreviated list form (dot points is acceptable for this step). Check your method is clear and briefly states each step taken to locate the information. Note: including something like ‘Database’ does not demonstrate any relevant legal research skills; the bottom cell requires you to provide an initial analysis of the relevance of the source to the factual scenario. Where relevant, |
| (iii) |
this analysis is required to integrate a description of the or the judicial role of Australian courts and/or the legislative function of
Australian parliaments. This means that in addition to saying what aspects of the law are potentially relevant, when relevant, you
ought to note how and why the source is relevant (jurisdiction, binding precedent, etc).
(6) With respect to your initial analysis: as much as possible paraphrase the main ideas found in each source. If you do use quotes in this
analysis be sure to keep them brief. For the purposes of this Annotated Bibliography (only), you are not required to provide a reference
(via a footnote) for any paraphrased ideas (which is usually a requirement in academic work), but you must do so for any direct quotes.
(7) Referencing and regular Bibliography:
| (i) | you are required to include a regular Bibliography. Note: Assessment 2, while developing research and bibliographic skills, is the content of the assignment and it does not do the work of a regular Bibliography. For this reason so you must also include a regular Bibliography (that is, separately to the assignment content) all of your referencing must accord with the with the Australian Guide to Legal Citation (‘the AGLC’) the ten sources in the Annotated Bibliography (listed in the top cell) must accord with the style for entries in a Bibliography. See rule 1.13 of the AGLC for details (note: you will need to refer to other rules, too, to accord with rule 1.13) |
| (ii) (iii) |
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| (iv) | in your initial analysis you may use footnotes; if you do, please be sure to include the sources of those footnotes in the (regular) Bibliography any material that is directly used or quoted must be referenced by a footnote and, as noted, that source must be included in the (regular) Bibliography material that influences or guides your thinking in general but is not directly used or quoted) must be included in the (regular) Bibliography. |
| (v) | |
| (vi) |
| (8) | Materials provided at (3) above: it is not required to include any or all of these materials as one of your ten sources, but you may do so if you think any of them is among the ten most relevant sources. Note: |
| (i) | If provided material guides your learning and further research but you do not include it in your ten sources, then you must include it in the regular Bibliography that must be included with this paper (as noted Assessment 2, while developing research and bibliographic skills, does not do the work of a regular Bibliography) similarly, if a provided material refers to other material that assists you in your thinking as you develop your analysis but you do |
| (ii) |
not cite that other material as one of your ten relevant sources or even at all in your analysis then, again because that material has
played a role in your thinking, you must include it in the regular Bibliography. For example, if a chapter in a textbook refers to the
case of Car & Universal Finance Co Ltd v Caldwell [1965] 1 QB 525 (CA) and you go on to locate the full text of this case and it plays
a role in your thinking even though it is not one of your sources or even directly mentioned in your initial analysis, then you must to
cite this material in your Bibliography.
(9) Relationship between Assessment 2 and Assessment 4: before you even start Assessment 2 be sure also to read the instructions for
Assessment 4 to ensure you appreciate the progression between these two assessment tasks. Assessment 2 is an initial research task
and, on the basis of the same factual scenario, Assessment 4 is an essay which will draw on the initial research and analysis undertaken in
Assessment 2. It will assist you as you undertake Assessment 2 to have a sense of Assessment 4.
(10) Word Count: only the words of the third cell (the initial analysis of the source) will be counted towards the word count. Given the word
count is 1,500 words and there are ten sources, this gives you an average of 150 words for each initial analysis.
(11) Marking Criteria: the marking criteria (which are available to you to view in advance) are developed to assist you to understand the
bases upon which your work will be assessed and to have a sense of the standards that will be applied to each criterion. Ensure you
address all aspects of the marking criteria in your response.
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(12) Submission must include Cover Sheet: your final submission (ie: after you have submitted your paper to obtain a Turnitin result) must
include a fully completed Cover Sheet. Insert the Cover Sheet so it becomes the first page of your document.