Business Law

Requirement:
This is a group assignment.
The part you need to finish is based on this case to analyze the loopholes in the existing judicial system and how to make progress.(Australia
There are three more cases that need to be referenced:
45    Those cautionary observations seem to me to be an illustration of, or perhaps more accurately, an application in the particular circumstances of, the general necessity when dealing with any misleading or deceptive conduct case, to pay attention to all relevant circumstances, including the precise context in which the impugned conduct takes place. Cases subsequent to Stuart Alexander make it plain that these cautionary comments are relevant to discussing the context of comparative advertising and that there is no separate legal test or higher threshold that applies in cases of comparative advertising than in other contexts: see, for example, the following:
•    There is no separate legal test that applies in cases of comparative advertising: Reckitt Benckiser at [41] per Gleeson J.
•    There are no special principles that apply to comparative advertising and there is no higher threshold than for unilateral promotions, despite observations made in some of the case law about the need for caution in cases of comparative advertising: Specsavers Pty Ltd v The Optical Superstore Pty Ltd (No. 2) [2010] FCA 566 at [73] per Katzmann J.
•    It is not to be postulated that there are different legal principles to be applied in respect of comparative advertising: SC Johnson at [38(vi)] per Conti J.

 

CLAW6032 Semester 2 2019
Group Assignment (Written Component)
Students Names in Group:

Learning Outcomes Assessment Criteria Feedback

 Use of literature
 Knowledge of theory
 Analysis
 Critical
reasoning/critical
thinking
 Evaluation

Is the Assignment well
researched and argued?
 Understanding of content is
demonstrated;
 Identification of issues;
 Thoroughness of research;
 Discussion of problematic
areas where appropriate;
 Appropriate authorities are
used to support statements (if
relevant);
 Analysis
 Clear and concise expression
of own ideas and appropriate
recommendations

 Communication

Is the Assignment well
presented?
 Confirming with instructions
(word length, style)
 Written communication and
style (structure and
organization)
 Clarity of expression (including
accuracy, spelling, vocabulary
grammar and punctuation)
 Referencing
 Bibliography

 

A guide to reading and analysing case law

Steps Questions
Preliminary What are you reading? Are you reading a case from a law report series or from an online
database? Are you reading a case extract from a textbook?
What is the difference? Why does it matter?

First
reading
– reading
for the
context

In which court was the case
decided?

Was it a State court? A federal court? A court outside Australia?
Where does the court fit in the Australian court hierarchy?
Will the decision of this court be binding?

In which court did the case
begin?

Is this a decision at first instance? (i.e the first time a court has made a
decision in the matter?) Or is this an appeal from a lower court?

What are the names of the
parties?

Who commenced the legal proceedings? Who is the plaintiff and who
is the defendant? Or, in an appeal, who is the appellant and who is the
respondent? Are the parties individuals? Corporations? Government
agencies? The State?

What are the names of the
judges?

How many judges decided the case? Who are the judges? What do
you know about the judges? Did each judge give a separate judgment?

What is the date of this
decision?

When was the case decided? What was the social/political/legal
environment at the time? Has the social/political/legal environment
changed since the case was decided?

Is there a ‘headnote’ or
‘catchwords’?

The headnote may provide a useful summary of the facts and/or the
decision. A headnote is convenient but may not be comprehensive or
entirely accurate. The catchwords may give you the basic facts and the
relevant law involved in the case.

Is there a list of cases and/or
legislation cited in this
decision?

What are the cases? What is the legislation? What do you know about
the cases and the legislation? (The list of cases and/or legislation, if
any, will appear at the beginning of the case)

What order did the court
make?

Did the court find for the plaintiff or the defendant? Or, if the case is
an appeal, was the appeal allowed or dismissed? (The order of the
court may be given at the beginning or at the end of the case)

Second
reading
– reading
for an
overview

Consider the structure of
the case

Are there any useful headings in the judgments?
There is no prescribed order but generally, cases are set out as follows:
overview of the facts; outline of previous legal proceedings (if any); the
legal issue(s) or dispute in this case; discussion of the relevant law
(previous cases and/or legislation); reasoning of the judge in relation to
the legal issue(s) and applicable law; decision.
Are you interested in the whole range of issues considered by the court
or are you interested in only one of the issues dealt with in the case?
Why are you reading the case? If you are only interested in issues
relating to liability, consider whether you need to read the entire case
or only those parts of the case that deal with liability (and not read
those parts of the case that deal with, for example, procedural matters
or the appropriate penalty or remedy)

Consider the words used in
the case

Do any of the words or phrases used have a technical legal meaning?
Are any Latin terms used? Where will you look to find the legal
meaning of these words phrases and terms? Is there any dispute about
the legal meaning of any words or phrases?

Think about the facts What happened? To whom? Listing the facts in chronological order
or drawing a diagram may help to clarify what happened and to whom.
Is there a dispute about what happened? Do the parties agree on all
the facts? Are there any issues of fact? How does the court resolve any
issues of fact? In relation to the facts, consider the role of the jury (if
any) and the role of an appellate court.

Think about the legal
proceedings

What is the order this court is being asked to make? If the case is an
appeal, who won in the court below? The plaintiff or the defendant?
Who appealed? Why is the case before another court?

Identify the legal issue(s)
raised by the facts

Why is this case in this court?
What legal question(s) is the court being asked to consider?

Patty Kamvounias – Business Law

Third and
subsequent
readings
– reading
for analysis

What are the material facts
of the case?

Distinguish relevant facts from irrelevant facts.
Which facts influenced the court’s decision?

What was the court’s
decision on the legal
issue(s)?

How did the court resolve/answer the legal question(s)?
What is the decision of the court?

What reason(s) did the
court give for the decision?

Consider the court’s reasoning
• What earlier cases did the judge consider to be relevant/applicable
to this decision? Why were these cases considered to be
relevant/applicable to deciding this case?
• What earlier cases did the judge consider to be
irrelevant/inapplicable to this decision? Why were these cases
considered to be irrelevant/inapplicable to deciding this case?
• What rules from earlier cases, if any, did the judge apply or follow
in this case?
• What rules from earlier cases, if any, did the judge not follow or
distinguish in this case?
(Does the judge use factual differences in earlier cases as
justification for not following the rule in the earlier case?)
• Does the judge make any observations that are not necessary to
support this decision?
(Does the judge refer to or discuss a hypothetical situation?)
• Distinguish between legal rules and statements directly involved
with the judge’s decision (ratio) and those not directly involved
with the judge’s decision (obiter dicta). Why do you need to do
this?
• The ratio may contain the reasons for the rule ( why it was formed,
why it is being modified, why it is desirable or necessary) and the
application of the rule ( why the rule applies or does not apply to
the facts of this case)
• Does the judge give more than one reason for the decision?
• If there is more than one judge in this court,
o was the court’s decision unanimous?
o was there a strong dissenting judgment?
o did all the judges reach the same decision? Did all judges
use the same reasoning to reach the same decision?
o what difference, if any, is there in the reasoning of the
different judges?

What is the legal rule arising
from the court’s decision?

Can you identify a few lines in the judgment that give the legal rule?
Or is the rule implied in the judgment?
How can you state the legal rule from this case?

What do you think about
this case?

What is your opinion of the decision of the case?
What is the rationale or underlying policy of the decision?
What are the consequences of this case?
What is your view of the scope of the rule? How might the rule from
this case be restated more narrowly? more generally?
How might the rule from this case be used in later cases in other
circumstances? Can the rule apply to different facts?
Are there any issues left unresolved by this case? If so, what are they?