LEGAL PROBLEM QUESTIONS 1 What is the issue

LEGAL PROBLEM QUESTIONS 1. What is the issue? Issue of fact or issue of law?

Picking the legal issue raised is the most important skill in answering a legal problem. Before you can do this however, you need to be able to determine the difference between an issue of fact and an issue of law.

It is the issue of law which requires an answer – not the issue of fact. A lawyer is not a private investigator.

Issue? n “Issue” means issue in dispute, or question. You need to resolve this to answer the problem before you. e. g. consider the following maths problem: Mary goes to the butcher. She wishes to buy ½ kg of sausages. Sausages are $17. 00 a kilo. The issue, or the question to be determined, is how much will ½ kg of sausages cost, or what is ½ of $17. 00. The same principle operates when solving legal problems – you need to consider the facts to work out what the issue to be resolved is.

Legal issue n n n Focus on the legal issue – not social, policy or personal considerations. The issue is not that sausages are an outrageous price, or that Mary should become a vegetarian, or that competition from supermarket chains is driving the local butcher out of business. The issue is: how much will ½ kg of sausages cost.

A legal problem is not a stimulus, which seeks a response based on personal experience or social or policy reflection. It is a problem which requires legal analysis.

Role of facts n n Facts are important – because the facts disclose the legal issue in question. But the question is never about the facts. The facts are an artificial vehicle used to raise legal issues and to test your knowledge of them. Don’t get so distracted by the facts that you lose sight of the law.

Important facts? n n The facts that Mary wants to buy sausages in the amount of ½ kg and that they cost $17 per kg are important. They are important because by considering these facts we can discern the issue: how much will ½ kg of sausages cost, or what is ½ of $17. 00. n The answer will not be about sausages, but about the formula (or law) we will use to determine the price of ½ kg of sausages.

Application n The facts of a question are also important as they will be necessary to frame the answer to the problem. So, in our example, the answer will not be $8. 50. The answer will be framed in the given facts – Mary will need to pay the butcher $8. 50 to buy ½ kg of sausages. Another way of saying this is that the law, or principle, must be applied to the facts to provide an answer.

So the process of identifying the issue in a problem question is a process of reading the facts closely and carefully to work out what legal issue they raise for determination.

Sometimes the facts will remind you of a case –which will generally make it easy to identify an issue. Often they will not. But you need to learn how to read the facts carefully in order to identify the legal issue being raised.

To remember: n n But remember: a consideration of the facts is the means to discerning the issue of law to be answered. Facts – and any questions of fact you may have – are not the focus of a legal problem question

But in legal practice? n n This is different to legal practice. In practice, clients will come to you with problems which raise both legal and factual issues. You will then need to be able to distinguish between the two. You will seek further instructions to resolve the questions of fact, but you will have to use your legal knowledge and research skills to resolve the issues of law. A legal practitioner is only interested in those questions of fact which highlight issues of law to be resolved, and serve as evidence in respect of legal propositions which need proving. Legal practitioners are not private investigators. Remember that a legal problem question, like an exam question, is artificially constructed to test your knowledge of a particular area. It will always be concerned about issues of law – not fact.

Difference between an issue of fact or law? n n n A good rule of thumb is to ask yourself, who or how a particular issue can be determined. If it can be determined by a witness giving evidence it will be a question of fact. If it falls for decision by the judge, it will be a question of law.

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

Exercises n Consider whether each of the following will be issues of fact, or issues of law: n What is the expiry date of a particular lease of a Fact, anyone who has read the lease can answer certain residential property? this question • Have all the tenants of the residential property signed the lease? Fact, again, anyone who has read the lease can determine the parties to the lease

Exercises continued n Will all the tenants who have signed the lease be bound by all the terms written in the lease? Law – the effect of a party’s signature on a contract cannot be determined simply by looking at the lease. It requires a consideration of the relevant law, e. g the signature rule in Toll v Alphapharm • How many bedrooms does the house the subject of the residential lease contain? Fact – will be anyone who has seen the house able to answer this question

n Does the house have termites? Fact – any pest exterminator could give an expert opinion about this matter. • If the real estate agent made an oral promise to the tenants that the house was free of termites, and the house proves to be infested with termites, can the tenants force the real estate agent to fumigate the premises? Law – the answer to this question requires a consideration of the issue of whether or not the statement made by the real estate agent forms part of the contract for the lease of the premises, or may perhaps form a collateral contract which will be enforceable by the tenants.

Exercises Isolate the issues of fact and law in the following problems and describe how you would resolve them: n. Pam is driving along the Great Western Highway in Sydney when she is stopped by Highway Patrol officers who inform her that she was travelling over the speed limit. Issue of fact: what speed was Pam travelling – seek instructions. Issue of law: is the speed at which she was travelling in excess of the speed limit posted on the highway in accordance with the relevant legislation and any regulations made pursuant thereto

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 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 R 168 of the Australian Road Rules, which provides in part as follows: 168 No parking signs (1) The driver of a vehicle must not stop on a length of road or in an area to which a no parking sign applies, unless the driver: (a) is dropping off, or picking up, passengers or goods; and (b) does not leave the vehicle unattended; and (c) completes the dropping off, or picking up, of the passengers or goods, and drives on, as soon as possible and, in any case, within the required time after stopping. Offence provision. (2) For this rule, a driver leaves a vehicle unattended if the driver leaves the vehicle so the driver is over 3 metres from the closest point of the vehicle. (3) In this rule: required time means: (a) if information on or with the sign indicates a time — the indicated time; or (b) if there is no indicated time — 2 minutes; or (c) if there is no indicated time, or the indicated time is less than 5 minutes, and rule 206 [re handicapped drivers] applies to the driver — 5 minutes. Advise James.

Answer n n Issues of fact: n How far away from the car was James when he was picking up his dog – seek instructions n How long did James take? – seek instructions Issues of law: n Is Pepe a passenger or a good? The rules of statutory interpretation would need to be applied to work this out n Did James leave the car unattended – the law would need to be applied to the facts to determine this – the meaning of unattended will be determined by reading the entire rule in accordance with the principles of statutory interpretation n Did James pick up Pepe within the required time – again, the law needs to be applied to the facts – including a consideration of whether or not James is the holder of a Rule 206 certificate.

n n Assume you are advising James, not in real life – when you can seek further instructions – but in an artificial exam situation. How would your advice change? In an exam situation, you cannot seek further instructions – you simply consider the issues based on the information provided. Sometimes this information will seem incomplete – this is not asking you to discuss what the facts might be. It is asking you to indicate your knowledge of the law by indicating what facts will need to be determined and how the advice may change in different circumstances. So, your advice would: n Ignore the issues of fact n Concentrate on the issues of law n Indicate – briefly – what facts (eg time taken) have to be determined. n Focus discussion on issues of law. 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 animal fall into a third category not covered by the legislation. The other issues we identified are issues of simply applying the law to facts to be determined. Because the question only provides enough facts to discuss one issue in detail – this is the issue which should form the focus of the discussion

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