LEGAL LEGAL PROBLEM PROBLEM

QUESTIONSQUESTIONS1.What is the issue? 1.What is the issue?

Issue of fact or issue of law?Issue of fact or issue of law?

Picking the Picking the legal issuelegal issue raised is the most raised is the most important skill in important skill in answering a legal answering a legal

problem. problem. Before Before you can you can do this however, you do this however, you

need to be able to need to be able to determine the difference determine the difference between an between an issue of factissue of fact

and an and an issue of law.issue of law.

It is the issue of It is the issue of law law which which requires requires an answer – not an answer – not

the issue of fact.the issue of fact.

A lawyer is not a private A lawyer is not a private investigator.investigator.

Issue?Issue? ““Issue” means issue in dispute, or question. You Issue” means issue in dispute, or question. You

need to resolve this to answer the problem before need to resolve this to answer the problem before you. e.g. consider the following maths problem:you. e.g. consider the following maths problem:

Mary goes to the butcher. She wishes Mary goes to the butcher. She wishes to buy ½ kg of sausages. Sausages to buy ½ kg of sausages. Sausages are $17.00 a kilo.are $17.00 a kilo.

The issue, or the question to be determined, The issue, or the question to be determined, is how much will ½ kg of sausages cost, or is how much will ½ kg of sausages cost, or what is ½ of $17.00.what is ½ of $17.00.

The same principle operates when The same principle operates when solving legal problems – you need to solving legal problems – you need to consider the facts to work out what the consider the facts to work out what the issue to be resolved is.issue to be resolved is.

Legal issueLegal issue Focus on the Focus on the legal issuelegal issue – not – not

social, policy or personal social, policy or personal considerations.considerations.

The issue is The issue is notnot that sausages are an that sausages are an outrageous price, or that Mary should outrageous price, or that Mary should become a vegetarian, or that become a vegetarian, or that competition from supermarket chains competition from supermarket chains is driving the local butcher out of is driving the local butcher out of business. business.

The issue The issue isis: : how much will ½ kg of how much will ½ kg of sausages cost. sausages cost.

A legal problem is not a A legal problem is not a stimulus, which seeks a stimulus, which seeks a

response based on response based on personal experience or personal experience or

social or policy social or policy reflection. It is a reflection. It is a

problem which requires problem which requires legal analysis.legal analysis.

Role of factsRole of facts Facts are important – because the Facts are important – because the

facts disclose the legal issue in facts disclose the legal issue in question. question.

But the question is But the question is nevernever about the about the facts.facts.

The facts are an artificial vehicle The facts are an artificial vehicle used to raise legal issues and to test used to raise legal issues and to test your knowledge of them.your knowledge of them.

Don’t get so distracted by the facts Don’t get so distracted by the facts that you lose sight of the law.that you lose sight of the law.

Important facts?Important facts?

The facts that The facts that Mary Mary wants to buy wants to buy sausagessausages in the amount of in the amount of ½ kg ½ kg and that and that they cost they cost $17 per kg$17 per kg are important. are important.

They are important because by They are important because by considering these facts we can discern the considering these facts we can discern the issue: issue: how much will ½ kg of sausages how much will ½ kg of sausages cost, or what is ½ of $17.00. cost, or what is ½ of $17.00.

The answer will not be about The answer will not be about sausages, but about the formula (or sausages, but about the formula (or law) we will use to determine the law) we will use to determine the price of ½ kg of sausages.price of ½ kg of sausages.

ApplicationApplication

The facts of a question are also The facts of a question are also important as they will be necessary important as they will be necessary to frame the answer to the problem. to frame the answer to the problem.

So, in our example, the answer will So, in our example, the answer will not be $8.50. The answer will be not be $8.50. The answer will be framed in the given facts – Mary will framed in the given facts – Mary will need to pay the butcher $8.50 to buy need to pay the butcher $8.50 to buy ½ kg of sausages. ½ kg of sausages.

Another way of saying this is that the Another way of saying this is that the law, or principle, must be law, or principle, must be appliedapplied to to the facts to provide an answer.the facts to provide an answer.

So the process of So the process of identifying the issue identifying the issue

in a problem question in a problem question is a process of is a process of

reading the facts reading the facts closely and carefully closely and carefully

to work out what to work out what legal issue they raise legal issue they raise for determination. for determination.

Sometimes the facts will Sometimes the facts will remind you of a case –remind you of a case –

which will generally which will generally make it easy to identify make it easy to identify an issue. Often they will an issue. Often they will

not. But you need to not. But you need to learn how to read the learn how to read the

facts carefully in order to facts carefully in order to identify the legal issue identify the legal issue

being raised. being raised.

To remember:To remember:

But remember: a consideration of the But remember: a consideration of the facts is the means to discerning the facts is the means to discerning the issue of law to be answered.issue of law to be answered.

Facts – and any questions of fact you Facts – and any questions of fact you may have – are not the focus of a may have – are not the focus of a legal problem questionlegal problem question

But in legal practice?But in legal practice? This is different to legal practice.This is different to legal practice. In practice, clients will come to you with problems In practice, clients will come to you with problems

which raise both legal and factual issues. You will then which raise both legal and factual issues. You will then need to be able to distinguish between the two. You need to be able to distinguish between the two. You will seek further instructions to resolve the questions of will seek further instructions to resolve the questions of fact, but you will have to use your legal knowledge and fact, but you will have to use your legal knowledge and research skills to resolve the issues of law. research skills to resolve the issues of law.

A legal practitioner is only interested in those A legal practitioner is only interested in those questions of fact which highlight issues of law to be questions of fact which highlight issues of law to be resolved, and serve as evidence in respect of legal resolved, and serve as evidence in respect of legal propositions which need proving. Legal practitioners propositions which need proving. Legal practitioners are not private investigators. are not private investigators.

Remember that a legal problem question, like an exam Remember that a legal problem question, like an exam question, is artificially constructed to test your question, is artificially constructed to test your knowledge of a particular area. It will always be knowledge of a particular area. It will always be concerned about issues of law – not fact.concerned about issues of law – not fact.

Difference between an issue of fact Difference between an issue of fact or law?or law?

A good rule of thumb is to ask A good rule of thumb is to ask yourself, who or how a particular yourself, who or how a particular issue can be determined. issue can be determined.

If it can be determined by a If it can be determined by a witnesswitness giving evidence it will be a question giving evidence it will be a question of of fact.fact.

If it falls for decision by the If it falls for decision by the judgejudge, it , it will be a question of will be a question of law.law.

ExampleExample So, is a particular fence in dispute made of So, is a particular fence in dispute made of

timber palings or colourbond? Any witness timber palings or colourbond? Any witness who has seen the fence can give evidence who has seen the fence can give evidence about its construction – this is a question about its construction – this is a question of fact. Is the fence on the dividing line of fact. Is the fence on the dividing line between two properties? A surveyor could between two properties? A surveyor could give expert evidence about this matter – it give expert evidence about this matter – it is a question of fact. Is the is a question of fact. Is the timber/colourbond construction on/off the timber/colourbond construction on/off the dividing line between two properties a dividing line between two properties a “dividing fence” within the meaning of the “dividing fence” within the meaning of the “Dividing Fences Act” – only a judge could “Dividing Fences Act” – only a judge could answer this. Thus, it is a question of law.answer this. Thus, it is a question of law.

. . Is the fence on the dividing line between two properties? A surveyor could give expert evidence about this matter – it is a question of fact.

So, is a particular fence in dispute made of timber palings or colourbond? Any witness who has seen the fence can give evidence about its construction – this is a question of fact.

Is the timber/colourbond construction on/off the dividing line between two properties a “dividing fence” within the meaning of the “Dividing Fences Act” – only a judge could answer this. Thus, it is a question of law.

ExercisesExercises

Consider whether each of the following will Consider whether each of the following will be issues of fact, or issues of law:be issues of fact, or issues of law: What is the expiry date of a particular lease of What is the expiry date of a particular lease of

a certain residential property?a certain residential property?

Fact, anyone who has read the lease can Fact, anyone who has read the lease can answer this questionanswer this question

• Have all the tenants of the residential property Have all the tenants of the residential property signedsigned the lease?the lease?

Fact, again, anyone who has read the Fact, again, anyone who has read the lease can determine the parties to the lease can determine the parties to the leaselease

Exercises continuedExercises continued

Will all the tenants who have signed the lease Will all the tenants who have signed the lease be bound by all the terms written in the lease?be bound by all the terms written in the lease?

Law – the effect of a party’s signature on Law – the effect of a party’s signature on a contract cannot be determined simply a contract cannot be determined simply by looking at the lease. It requires a by looking at the lease. It requires a consideration of the relevant law, e.g the consideration of the relevant law, e.g the signature rule in signature rule in TollToll v v AlphapharmAlphapharm

• How many bedrooms does the house the How many bedrooms does the house the subject of the residential lease contain?subject of the residential lease contain?

Fact – anyone who has seen the Fact – anyone who has seen the house will be able to answer this house will be able to answer this questionquestion

Does the house have termites? Does the house have termites?

Fact – any pest exterminator Fact – any pest exterminator could give an expert opinion about could give an expert opinion about this matter.this matter.•If the real estate agent made an oral promise If the real estate agent made an oral promise

to the tenants that the house was free of to the tenants that the house was free of termites, and the house proves to be infested termites, and the house proves to be infested with termites, can the tenants force the real with termites, can the tenants force the real estate agent to fumigate the premises?estate agent to fumigate the premises?

Law – the answer to this question Law – the answer to this question requires a consideration of the issue of requires a consideration of the issue of whether or not the statement made by whether or not the statement made by the real estate agent forms part of the the real estate agent forms part of the contract for the lease of the premises, contract for the lease of the premises, or may perhaps form a collateral or may perhaps form a collateral contract which will be enforceable by contract which will be enforceable by the tenantsthe tenants. .

ExercisesExercises

Isolate the issues of fact and law in the Isolate the issues of fact and law in the following problems and describe how you following problems and describe how you would resolve them:would resolve them:

Issue of fact: what speed was Pam Issue of fact: what speed was Pam travelling – seek instructions.travelling – seek instructions.

Pam is drivingPam is driving along the Great Western along the Great Western Highway in Sydney when she is stopped by Highway in Sydney when she is stopped by Highway Patrol officers who inform her that Highway Patrol officers who inform her that she was travelling over the speed limit.she was travelling over the speed limit.

Issue of law: is the speed at which sheIssue of law: is the speed at which she was was travelling in excess of the speed limit travelling in excess of the speed limit posted on the highway in accordance with posted on the highway in accordance with the relevant legislation and any the relevant legislation and any regulations made pursuantregulations made pursuant theretothereto

James needs to pick up his pet dog Pepe from the groomers. All the parking spots at the James needs to pick up his pet dog Pepe from the groomers. All the parking spots at the groomers’ premises are taken and so James parks his car in the street and rushes in to groomers’ premises are taken and so James parks his car in the street and rushes in to pick up Pepe. As he returns to the car he notices that he has parked in a No Parking pick up Pepe. As he returns to the car he notices that he has parked in a No Parking zone and that he has received an infringement notice pursuant to R168 of the zone and that he has received an infringement notice pursuant to R168 of the Australian Road Rules, which provides in part as follows:Australian Road Rules, which provides in part as follows:168 No parking signs168 No parking signs(1) The driver of a vehicle must not stop on a length of road or(1) The driver of a vehicle must not stop on a length of road orin an area to which a no parking sign applies, unless thein an area to which a no parking sign applies, unless thedriver:driver:(a) is dropping off, or picking up, passengers or goods; and(a) is dropping off, or picking up, passengers or goods; and(b) does not leave the vehicle unattended; and(b) does not leave the vehicle unattended; and(c) completes the dropping off, or picking up, of the(c) completes the dropping off, or picking up, of thepassengers or goods, and drives on, as soon as possiblepassengers or goods, and drives on, as soon as possibleand, in any case, within the required time afterand, in any case, within the required time afterstopping.stopping.Offence provision.Offence provision.(2) For this rule, a driver leaves a vehicle (2) For this rule, a driver leaves a vehicle unattended unattended if theif thedriver leaves the vehicle so the driver is over 3 metres fromdriver leaves the vehicle so the driver is over 3 metres fromthe closest point of the vehicle.the closest point of the vehicle.(3) In this rule:(3) In this rule:required time required time means:means:(a) if information on or with the sign indicates a time —(a) if information on or with the sign indicates a time —the indicated time; orthe indicated time; or(b) if there is no indicated time — 2 minutes; or(b) if there is no indicated time — 2 minutes; or(c) if there is no indicated time, or the indicated time is less(c) if there is no indicated time, or the indicated time is lessthan 5 minutes, and rule 206 [re handicapped drivers] applies to the driver — 5than 5 minutes, and rule 206 [re handicapped drivers] applies to the driver — 5minutes.minutes.Advise James.Advise James.

AnswerAnswer Issues of fact:Issues of fact:

How far away from the car was James when he was How far away from the car was James when he was picking up his dog – seek instructionspicking up his dog – seek instructions

How long did James take? – seek instructionsHow long did James take? – seek instructions

Issues of law:Issues of law: Is Pepe a passenger or a good? The rules of statutory Is Pepe a passenger or a good? The rules of statutory

interpretation would need to be applied to work this interpretation would need to be applied to work this outout

Did James leave the car unattended – the law would Did James leave the car unattended – the law would need to be applied to the facts to determine this – need to be applied to the facts to determine this – the meaning of unattended will be determined by the meaning of unattended will be determined by reading the entire rule in accordance with the reading the entire rule in accordance with the principles of statutory interpretationprinciples of statutory interpretation

Did James pick up Pepe within the required time – Did James pick up Pepe within the required time – again, the law needs to be applied to the facts – again, the law needs to be applied to the facts – including a consideration of whether or not James is including a consideration of whether or not James is the holder of a Rule 206 certificate.the holder of a Rule 206 certificate.

Assume you are advising James, not in real life – when you can Assume you are advising James, not in real life – when you can seek further instructions – but in an artificial exam situation. How seek further instructions – but in an artificial exam situation. How would your advice change?would your advice change?

In an exam situation, you cannot seek further instructions – In an exam situation, you cannot seek further instructions – you simply consider the issues based on the information you simply consider the issues based on the information provided. Sometimes this information will seem provided. Sometimes this information will seem incomplete – this is not asking you to discuss what the incomplete – this is not asking you to discuss what the facts might be. It is asking you to indicate your knowledge facts might be. It is asking you to indicate your knowledge of the law by indicating what facts will need to be of the law by indicating what facts will need to be determined and how the advice may change in different determined and how the advice may change in different circumstances.circumstances.

So, your advice would:So, your advice would: Ignore the issues of factIgnore the issues of fact Concentrate on the issues of lawConcentrate on the issues of law Indicate – briefly – what facts (eg time taken) have Indicate – briefly – what facts (eg time taken) have

to be determined.to be determined. Focus discussion on issues of law.Focus discussion on issues of law.

In our example, there is one central issue of law – is Pepe a In our example, there is one central issue of law – is Pepe a passenger or a good within the meaning of the law, or does the passenger or a good within the meaning of the law, or does the animal fall into a third category not covered by the legislation. The animal fall into a third category not covered by the legislation. The other issues we identified are issues of simply applying the law to other issues we identified are issues of simply applying the law to facts to be determined. Because the question only provides facts to be determined. Because the question only provides enough facts to discuss one issue in detail – this is the issue which enough facts to discuss one issue in detail – this is the issue which should form the focus of the discussionshould form the focus of the discussion

Legal problems are always Legal problems are always seeking a legal discussion – not a seeking a legal discussion – not a discussion of the facts.discussion of the facts.