Reference no: EM131465098

You have been provided with an audio witness statement from ‘Tina Smith'.

Your major assignment questions are:

1. Discuss whether any contract or contracts came into existence for the sale of Phillip's auto repair business from Phillip to Tina; and also whether Tina is entitled to any estoppel based relief concerning it;and

2. Discuss if Tina can leave work for TAFE, and if so to what extent and in what circumstances, basing your answers only on basic principles relating to the concepts of: the fact of agreement; consideration; and estoppel. Once again, please also disregard any specific law relating to the law of employment or industrial relations or of the TAFE curriculum. It is to be assumed that Tina will continue her employment with Phillip - termination of her employment is assumed not to be an attractive option for either of them and employment-specific, or industrial-relations specific knowledge, are specifically alsoto be disregarded.

In terms purely of length, you can expect the treatment of 2 to be slightly shorter but do not make any assumptions as to the allocation of marks as there might be some overlap in the treatment of principles and their application between the two questions.

The following guide contains further directions and guidance:

A. General Comments:

1. The explicitlearning outcome is to demonstrate your ability to identify, analyse, and apply contractual principles and concepts in a process of legal problem solving to the extent that they have beenthus far covered in this unit ielectures 1 -5and the respective tutes, only.

2. Despite the potential relevance, do not discuss the requirements of writing or part performance, or matters more specifically relating to the law of the sale or purchase of real property. These are not learning outcomes. I can incidentally advise that a finding of part performance was not made in Waltons Stores itself. The direction that you should disregard the requirements of part performance is not unrealistic.

3. The question requires you to give deep thought to aspects of contract formation more generally (described sometimes as ‘the fact of agreement'in eg your text) consideration,and estoppel.

4. Your ability to understand these concepts and how and why they might either overlap (or be at variance) with each other, and your organisation of an answer that addresses the question coherently and in a structured way, will all be tested in this exercise.

5. Every reasonable attempt was made to provide sufficient information to answer the question within the parameters of the learning outcomes of the exercise. You must attempt the exercise with those parameters in mind. This will require you to ‘quarantine' from your answers extraneous legal and factual matters which detract from the learning outcomes.

6. There is therefore a difference between making a genuine point which does require you to comment on some factual difficulty in the scenario- and one which does not.

7. Just by way of example it couldbe regarded as a valid observation to say following a legitimate discussion of the law and its application that the material would not ‘unequivocally indicate his/her willingness to be bound etc'. Such an analysis would legitimately test of the character of an ‘offer' and is in the nature of the answer that one might give once one has legitimately analysed both Phillip's and Tina's positions - and only then.

8. Similarly, one might, legitimately say egthat it cannot be said with confidence that based on the present facts, the requirement of detriment etc(or whatever) has been satisfied - provided of course you have provided a legitimate basis for the comment.

9. To the contrary, it would notbe regarded as helpful to comment (say) that it would be ‘unfair' for Tinato insist on the performance of any alleged agreement or that Phillip had mislead Tina or similar. Or to say blandly there is no evidence that Phillip/Tina made any offer or similar or (quite popular with first years) to say blandly ie without more that Phillip did not act in good faith etc.The latter does not legitimately ‘test' any relevantprinciple.

10. Your weekly tute sample answers provide examples of where, notwithstanding evidentiary and other difficulties in the scenarios, answers can legitimately be provided and you may wish to refer to them for further guidance as to how to proceed.

11. By taking a fair view of the scenario and by bearing the learning outcomes steadily in mind in your analysis, you should be able to answer the question within the parameters of the learning outcomes - and to express any concerns that you might have within the ambit of the principles sought to be advanced. We all acknowledge that trying the best we can, scenarios simply cannot be written so as to be so complete and full that evidentiary or factual omissions are absent altogether and the exercise must be approached with a view to maintaining the integrity of the exercise. This can only be achieved by keeping an eye steadily on the intended learning outcomes.

12. An important, associated, question is how you deal with potential disputes of fact, namely a potential contrary position that perhaps Phillip might take.

13. Tina's statement needs to be more or less taken at face value. Accordingly the proper way to explore conflicts of fact is to examine the scenario and where it is apparentthat Phillip might take a contrary position, then it is open and sometimes desirable for you to consider the consequences of the contrary position being taken by Phillip as part of your argument and indeed a good answer would actually demand that you do so.An examiner will want you to deal with matters in controversy.

14. The tute exercises will give you guidance as to how to address conflicts of fact. In fact, the essence of problem solving is to address these.

15. Do not however speculate or hypothesise in abstract.The scenario was provided for the express reason of providing the parameters of the assignment. There must always be at least some foundation in the scenario for your argument.

16. The adoption of a factual position that entirely precludes the possibility of any consideration of the issues sought to be analysed is very much to be discouraged as it detracts from the integrity of the exercise and has the result that a legitimate learning outcome might not be addressed.

17. The ultimate ‘correctness' of the view is not of the essence (except that in an extreme case, it might fairly be said that some conclusions are just not open on any fair reading of the scenario). The examiner wants to be satisfied that you have extracted the argument and have demonstrated how to apply the law.

18. In a situation of uncertainty,or where a confident conclusion cannot be expressed,a solicitor (and you, as student) may legitimately say things like:‘on these facts, the plaintiff is likely/unlikely to succeed/an offer arguably was/was not made' or similar expressions -but only after a process of performing the requisite analysis. Whatever the case, the actual process of legal argument and analysis is far more important than the ultimate conclusion(or sub conclusion). Examples of some commonly used terminology to express a view are contained in your weekly sample answers and you are of course free to adapt or modify them as appropriate where relevant to do so.

19. Do NOT recite facts generally as no process of analysis is demonstrated if you did!

20. In order to achieve coverage of matters which you think are genuinely in controversy, you might attempt a combination of these techniques:

a. Form a provisional conclusion earlier, then ‘get on' with the analysis egalthough difficult, a fair argument exists that there was a concluded contract, but if not, then...etc(and you would then have a template or basis upon which you can legitimately introduce the next ‘layer' of youranalysis, namely (say) estoppel. This is a common form of analysis and highly desirable from the point of view of covering the field of matters which can fairly be said to be in controversy. You should be generally familiar with this technique from the sample answers as it is a common technique.

b. Or (this is another form of shorthand)notwithstanding that it is highly arguable that there was no concluded meeting of the minds, on the basis that the same can be established, the next issue is whether X's promise is supported by consideration etc. etc.

21. A relatively common habit is to use the first person egit is my opinion; I feel that..; in my view; or variations thereof. Examiners in general do not approve of it (some are fairly tolerant but others not so). In general, please avoid the use of the first person. The rationalisation for that is that one's ‘view' is not relevant, simply the cold and dispassionate application of the law - or at least that is the rationalisation. Whatever the case, the practice is not generally one that finds favour. The use of the first person generally is not favoured.

B. Word Count/Format

22. The recommended word range is between 2,200- 2,600 words with 2,800words the absolute limit. The fairly flexible word range recognises that students do have different styles including the use or non-use of footnotes.There is a number of penalties that lecturers typically employ to penalise students who exceed the word limit, and the choice of which one if any depends on the circumstances.

23. The ability to your ability to recognise, articulate, and apply contractual principles and concepts in a process of legal problem solving and to structure a practical and legally correct answer coherently within the word range is an objective both in this assignment as well as in this unit generally as these skills form an integral part of the development of your analytical legal skills. Some matters may be controversial, but only barely so and will merit at best very limited analysis - or none. Others are so important that they attract far more detailed discussion. Others are totally irrelevant and at very best should attract a passing mention. The assignment will require you to give careful thought to all these conundrums; it is typical of legal problem solving that you need to confront several different difficulties.

24. The format of the answer should be in the style of an answer to an examination question - something that we practice in tutes constantly. The tute sample answers should be an adequate guide to the general form of the answer.

25. Students are not discouraged from using footnotes and may find personally that footnotes lend clarity to the expression of the answer but as the answer is to be provided in the form of an answer to an examination question, there is no absolute insistence that you do so (ie you would not ordinarily use footnotes in an exam).

26. By and large, I think that footnotes will indeed be of some assistancein an exercise like this. Marks will not be deducted for notusing footnotes.

27. Formal citations or references can be put in footnotes and if you use footnotes, this is the appropriate place for them. Footnotes if used in this way will not add to the word count.Footnotes however should never contain the substanceof anycommentor analysis or argument itself which you are relying on (which must always be in the body of the answer).

28. As for citations, I am happy for you to adopt the following regime: the first time you cite the particular case in your answer you should set out the full citation (the citation in the text will be satisfactory). Thereafter if you use the case, you can shorten the reference egWalton Stores (Interstate) v Maher(1988) 164 CLR 387 initiallyfollowed by just Walton Stores subsequently.

29. Students who have studied and are familiar with the AGLC conventions are encouraged to apply them but as not everyone is familiar with these, and given that this assignment ultimately is to be in the format of an examination answer, students will not be penalised for using alternative citation conventions - provided that the case which they are referring to can be identified with sufficient clarity and certainty. The way they are referred to in the text and/or casebook will be satisfactory.

C. Script

30. The primary‘document' is an audio file, as foreshadowed in your respective unit plans and there was an expectation that you should have been prepared for this.

31. One of the objectives of this exercise is for you to explore for yourselves the legal issues from the witness's statement as part of your training.As they say on television, law is about real people and real situations and this exercise to some extent will attempt to replicate reality.

32. People speak colloquially and what they say is often not as precise as sanitised as we might like. People come from all walks of life to seek legal advice and speak in a variety of ways and a lawyer needs to understand what they are saying. Hence the choice of medium.

33. As legal practitioners you will need to develop the art of extracting the legal purport of a sometimes untidy and unstructured statement.

34. Also language proficiency itself is something which must be assessed - see your unit plan - and obliquely, your ability to comprehend an oral statement tests this requirement.

35. Prima facie I therefore do not propose to release the script.

36. I will however be prepared to consider valid requests for a copy of the script. Given the very purpose for which this medium has been selected, I would not regard a generaldifficulty in processing the information mentally nor the inconvenience of mastering the information, as being valid reasons but I remain prepared to consider each request individually.

37. If a script is provided, it is likely that I will require written undertakings in a stat declaration to be provided and in a form that we will negotiate- though that will not invariably be the case. I will consider the need for this on a case by case basis.

38. If there are particular words or phrases that you cannot decipher, send me an email identifying the precise location of the word or phrase in question and I will be prepared to give favourable consideration to advising you of the word or phrase in question.

D. Use of cases and authority

39. It goes without saying that each material argument and analysis that is relied on must always be supported by legal authority. Common sense and logic, expressed outside the scope of the explicit legal principles or within the context of their analysis, attract very few marks.

40. The obvious resources are the text and casebook. These are required reading.

41. My article Recent developments in the phenomenon of agreement, and the practical effect of these on the scope of estoppel-based relief in Australia (2014) 38 Australian Bar Review 299 is not ‘required' reading, but it might be useful to give you some insight into the fault line between the parameters of contract on the one hand and estoppel on the other.The question invokes an understanding of the difference between the circumstances giving rise to the formation of a contract/the fact of agreement, and the type of situation which gives rise to relief by way of estoppel, and whether they are jurisprudentially the same, or different things, and my article might be of some help in this.

42. If the text, casebook and my article are the only resource materials that you use, I will not require a bibliography but if other references are used, I will require one.

43. The lecture summary is NOT an authorised reference and must not be cited.

44. It is obviously open to rely on material in other texts and references - and if you think this might be helpful, please feel free to do so - but be vigilant to ensure that any such additional material that you do refer to is within the parameters of the learning outcomes and parameters of the exercise and be sure you know what the case actually says.

45. Far too often in the past, students have relied on authorities for propositions extracted from some journal or text that sound useful or helpful but which upon closer examination, turn out to be totally irrelevant. Thus caution needs to be exercised.

46. On this note, the question has been designed so that it is entirely possible to create an excellent answer on the basis of material that is entirely confined to the text and casebook and my article

47. A different type of exercise (even in this unit or in Contract 2) may well have different imperatives with different demands, concerning the use of footnotes, formal citations, and a bibliography.

I-R-A-C

48. Legal problem solving is a cold and dispassionate art and your discussion needs to show clearly how your analysis actually addresses the question - no more and no less.

49. The way in which one would explicitly show the path of analysis from the identification of the relevant issue, the principles themselves, and the application thereof, is something which I constantly endeavour to demonstrate in the materials which I have issued (especially, but not limited to, the weekly sample answers). Hence the frequent references to I-R-A-C itself. There is no substitute for practice and the ability to do so is a life time skill.

50. I have in each week provided each sample answer in formulaic I-R-A-C format and I encourage you to use it in this assignment. I-R-A-C is ultimately a tool for your benefit more than anything else. I am also aware that many of you might not have fully mastered the art of applying I-R-A-C and some limited leeway will be granted - but an untidy answer or one where I cannot follow the reasoning will simply not attract a good mark. I-R-A-C thus is the safest and most convenient format and this assignment provides a good opportunity to test your mastery of I-R-A-C.

51. On a related, but different note, expressing oneself accurately, grammatically and literately is very much part of learning the law and you will separately be advised as to how we as unit coordinators will be assessing this important aspect of your tertiary education.

52. The mastery of I-R-A-C s in some ways a lifetime skill and I do not really expect you to have achieved that mastery in these few short weeks. That said, there are some fundamental dos and don'ts which I do expect you to have familiarised yourself with by the time you submit your assignment, as these fundamental rules have been applied each week. These are as follows:

a. Do not mix law and application.Eg do not say, without more: the display was an offer - this is established by Bootes.... By an application of the principles in Carlill, a unilateral contract was made..there was no reliance on the fact of the offer - see Empirnall(just some simple examples off the top of my head).This point is made at the outset as it is at the heart of IRAC and even if I do not expect you to master IRAC totally this is so fundamental that there is at least an expectation that you would not commit this type of error.

b. Do not mushing or merge the discussion of two issues, rather deal with them as separate IRACs.

c. Do not generallyrestate the facts, either in the guise of the ‘application' or as part of some dedicated introduction. It is not consistent with IRAC to do so and demonstrates nothing of analysis and would be regarded as unsound examination technique to do so. The examiner already knows the facts and he wants to see the analysis. If you state facts in the introduction, they are unnecessary. If the facts are stated in the ‘application' generally but without showing how they are in truth applied to the requirements of the law, then they do not, in essence, amount to ‘application' and are of no assistance to the examiner - he wants to see how you have actually woven the analysis, and does not want a recitation of the facts.

d. Do not provide a generalisedsummary of the law; the examiner rather wants to see the evolution of the applicable legal principles as part of the ‘rule' whose principles are then applied when the facts of the question are applied to the requirements of those principles. The two might actually soundlike the same thing but there is a very significant, even crucial, distinction between the two though admittedly this is far better explained by illustration. So, see the way in which the applicable rule(s) of law is/are actually developed or how they evolve,in the ‘Rules' of the respective weekly sample answers, and hopefully you will see what I mean. The last part of tute 4 (Gertie) is, at the level of first year law, quite a good example of how the ‘rule' might evolve and once again you will see that although there was a need there to discuss some competing legal principles, they are not presented as being cut and pasted versions from the text.

e. The most significant transgressors will be the authors of those answers that seem to be cut and pasted versions of passages in the text albeit with some minor grammatical and textual changes to suit the context; the best answers will be those that contain a sequential, thoughtful discussion showing the evolution of the applicable legal principles in the Rule part of the IRAC, so that the examiner can readily follow how the facts of the case are then to be applied against what are said to be the requirements of those applicable legal principles.

f. I accept that at this early stage of your legal studies, you are likely to have some difficulties in getting your heads around the idea, so perfection is not demanded, but I want to see that you are at least more or less on the right analytic track. Rome was not built in a day but there at least must be some signs of progress.

53. It is part of the skill that you will develop to identify how much or little of the actual facts of a case to replicate, keeping in mind that the facts are necessary to demonstrate how you address similarities and differences between your case and the authorities.

Attachment:- Tina Smith case.rar