QUESTION

“…The principles of equity have sought to repair injustice from gaps left in the common law of contract, however, they confer an excessive discretion upon the Court that undermines the clarity and certainty that the common law rules of contract themselves otherwise provide…”

Critically Analyse the above statement by way of reference to the following two cases:

–     Waltons Stores Interstate Ltd v Maher (1998) 164 CLR 387 (Promissory Estoppel) and

–     Commercial Bank v Amadio (1983) 151 CLR 447 (Unconscionable conduct)

In your answer, with respect to each of the above cases/areas of law, you should also refer to at least one recent case in each area of law that applies these case authorities to support your point of view.

Expected Structure and Mark Allocations of Your Essay:

 

Item	Proposed Indicative Marks Weighting
1. Introduction	3
2. Critical analysis
Case Analysis and statement of principles	8
How Equity confers discretion on the Court in the two areas	8
Whether Discretion conferred by Equity Undermines Clarity& Certainty in the law	10
3. Conclusion	2
Referencing AGLC  Method	4

 

You should use the above three points (1- 3) as headings in your essay. Notes for assignment:

1. 1. This paper will take you some time to complete. There should be a research phase, brief reading phase and reading/writing phase.
2. 2. To obtain at least 50% for this paper – it is expected that you will directly refer to the two High Court cases in your paper, with a further two other Australian contract law cases to support your analysis.

3. 3. It is expected that as a minimum you use five secondary sources (with at least three being journal articles).

4. 4. Be careful of overly relying on internet sources. Do not use Wikipedia as a reference in your paper !

5. 5. Use the law databases to locate commentaries that may help you to form your views and to express them.

Submission:

For UOW Campus students – assignments must be submitted in hard copy at LHA Central 19.1050 in Building 19 Room 1050 by 3.00 pm on MONDAY 4 JULY 2016.

For Sydney Business School Students – assignments must be returned by 3pm, 5

July 2016 at the Administration Counter on Level 8, or as instructed by Staff at the Sydney Business School.

Work is not to be placed under the door of any academic’s office. Students submitting assignments after the due date, whether or not they have been granted an extension, must still place their assignments in the abovementioned room.

Assignments should be attached to a School of Law coversheet, copies are provided at the back of this Assignment Topic, and outside the School of Law administration office. Sydney Business School students should follow normal procedures at the campus.

You are also be required to submit to ‘turnitin.com’ , and failing this – you will not receive a grade until it is appropriately submitted.

Please note that Academic Misconduct has serious consequences ! Word Length:

6 pages (including footnotes, but not including bibliography/reference list). The bibliography may be an additional (7th) page.

ANY PAGES BEYOND THE 6TH PAGE WILL NOT BE READ OR MARKED ! NO EXCEPTIONS !!!!

Format of Work:

The front page must consist of a completed School of Law Assessment Task cover sheet.

• All pages should be in black type, on white A4 paper, printed with 2.54 cm margins on all sides (left, right, top, bottom). Printing of assignments must be single sided.

• The font size must be 12 point font using the ‘Times’ font and line spacing should be ‘double spaced’. Pages must be numbered.
• Referencing/footnoting must be in accordance with the Australian Guide to rd Legal Citation (AGLC), (3edition, 2010)

Applications for extensions of time for submission MUST be made to the subject co- ordinator on or before the due date for submission. Students who submit assignments after the due date and who have not applied for and been granted an extension of time will be penalised in accordance with the policy in the Additional Information Guide (see ‘Extensions and Late Submission of Written Work’), also mentioned in the Subject Outline,.

Students must comply with the page limit, as markers are not required to read beyond the set page limit, and exceeding the limit may affect your final mark. You must keep a copy of your work.

The essay will be aimed at assessing your skills of critical evaluation. You must comply with the Additional Information Guide requirements set out in this Subject Outline that are relevant to written assignments (see ‘Assessment Information, in the Subject Outline)

Assessment Criteria

Marks will be awarded having regard to:

• Clear and concise written expression that conforms to the rules of English grammar and spelling
• Evidence of thorough research demonstrated in the critical analyse of the topic.
• Organised and structured presentation of information and ideas.
• Clear responses to the essay question.
• Demonstrated understanding and critical evaluation of the material.
• Correct referencing and strict compliance with the page length.

This assignment is worth 35% of the assessment in this subject. To pass the subject, you must obtain at least 35% as noted in the subject outline.

Assignments will be returned in seminars following completion of marking.

NOTE: This is an individual assignment. While it is anticipated that students will discuss the meaning of the questions and possible approaches to the questions, all work on the assignment from and including the planning stage to the final written product should be the student’s own work. Students should provide no more advice to other students than that a particular case, book or article is useful to the assignment generally or in relation to a particular issue

in the assignment. Students should not proof-read another’s assignment or read another’s assignment for ‘readability’ or ‘persuasiveness’; nor should they provide a copy of their work to another student, even a friend, in any circumstances.

Essay Frequently Asked Questions (FAQs)

Where should I start in researching and preparing to write this essay?

1. Locate the cases in the textbook and read the material in those parts of the chapters. You can consult the case index at the front of the book to find the case summaries and the sections of the book that they appear in.

When you have read these sources, do some more research. It is recommended that you consult at least 6 other sources, either primary or secondary, in addition to the references provided above. Look for quality, scholarly sources: primary sources from reputable and verifiable agencies or institutions; or secondary sources from academic journals and books, for example.

Ultimately, the maximum number of references you consult is up to you. You should do some research on the topic in order to adequately address the topic.

Look at the terms used in the essay topic. Try to define these terms in your own words and drawing on the knowledge you have gained from your readings (remember to provide references for sources you have paraphrased, or quoted if you have used direct quotes). Once you understand the basic concepts referred to in the topic, you are in a better position to address the topic itself.

What should I do to maximise my marks in this assessment task?

1. Remember to answer the topic set (this is one of the criteria for assessment, ie. focus on addressing the essay topic).

2. If you only address part of the topic, or only vaguely address the topic, your focus on addressing the essay topic will likely not be very good, which will affect your marks.

3. Download the cases and read them ! Refer to them in your essay !

4. You need to understand that the common law rules are quite mechanical and that Equity can override the strict application of the common law rules. In the cases, try to see how equitable principles have overruled the common law, and decide what you think about this. Read and re read the question.

5. There will not be much room in 6 pages to give too many irrelevant details. When referring to case facts – keep them brief. Remember that The marker knows the cases and the principles.

6. You need to develop arguments in your essay, in response to the topic. This may be in the form of an overall argument advanced throughout the paper using sub-arguments, or may be a series of arguments leading up to an overall conclusion in response to the essay topic. Development of argument in response to the essay topic is also one of the assessment criteria. You need to provide more than just description of a relevant issue/s in relation to the essay topic: see critical evaluation below. Don’t forget about counter-arguments: raise and address these in addition to your key arguments, in order to strengthen your position.

7. A critical evaluation means that you need to examine the foundations of the statement and express your views about how you perceive the statement. Do you agree with it ? Why ? Do you disagree ? Why ?

8. Structure of argument and your expression: There should be a clear, logical response to the essay topic, including in the presentation of your arguments. Concentrate on using clear, concise expression, and expressly stating how you will address the essay topic (normally in the introduction). In the body of your paper, critically analyse the topic and develop arguments where appropriate in response to the topic. These arguments should follow a logical progression: one argument should lead to the next and so forth. Don’t jump around in your arguments, eg. by partly addressing an argument, then starting on a new one, only to go back to a previous argument. Also be wary of repetition – there is no need to repeat yourself if you have made an argument clearly the first time; to do so would be a waste of valuable space in light of the word limit. Remember to use paragraphs in your essay: this sounds obvious, but some students do forget, and end up with one paragraph continuing over several pages! You are strongly encouraged to use headings in your essay, including ‘Introduction’ and ‘Conclusion’ as stated above. In the body of your essay, headings should reflect the content of the section to which the heading is given.

9. Analysis and critical evaluation. This is also one of the assessment criteria. Don’t just accept and reproduce other people’s arguments. Are the arguments supportable? What support is offered for the argument? Do other commentators agree? Why or why not? Do you agree? Why or why not? Are there any counter arguments – if so, what is their basis? How might they be addressed?

10. Provision of appropriate references: You are required, as noted above, to footnote and provide a bibliography in accordance with the Australian Guide to Legal Citation (AGLC) available. Specific questions, such as how to reference a particular source are clearly answered in the AGLC. Questions about sources which are not included in the AGLC can be directed to your tutor or to the Subject Coordinator.

11. A couple of tips based on marking of previous papers and common errors:
12. It is not sufficient to provide one reference/footnote at the end of a paragraph or section of your essay for the whole of that paragraph or section. You need to provide a footnote for each source referred to in a sentence, or part of a sentence (where a sentence refers to more than one source).
13. If you are directly quoting an author, you must:

1. For quotes 3 lines or shorter: surround the quote in single quotation marks
2. For quotes longer than 3 lines: quotes should be indented from the left and in a smaller font (11 font size), without any quotation marks

iii.  Also provide a reference if you are paraphrasing an author (including a pinpoint– page or paragraph as appropriate – reference) or referring to another’s ideas.

Rules on setting out a bibliography are provided at pages 33-35 of the AGLC. Please check resources available in the Learning Development website

Acknowledgement and Referencing

In recent years, there has been a particular problem with referencing & acknowledgment practice in this subject, especially in the essay. This probably occurs in the essay as this is the main task where you work outside of class and on your own, prior to submission in Week 9. Students of this subject have been interviewed under the University’s Policy on plagiarism, findings of plagiarism have been made (noted on the student’s file at the Academic Registrar’s Division or ‘ARD’), and penalties have been imposed.

You do not want to find yourself added to this list.

There are many ways you can avoid this happening:

1. 1. Make sure you know what plagiarism You can find out at.

2. Go to a course, obtain the handouts or talk to someone at Learning Development.

3. Downloading information from the web and putting it into your essays without quotation marks and references is plagiarism, and you will likely be caught. If you use the web in your research, every time you download or copy something, make sure you note exactly where it is from, when you obtained it (web-based sources can change frequently), who wrote it, and if you are copying it into another document (eg. you own computer-based notes or your draft essay) put the section in quotation marks (it is a good idea to highlight it all too, eg. in bold), so that you know these are someone else’s words when you come to write your essay. Don’t take short cuts: it doesn’t matter if you plagiarise by accident or intend to use someone else’s words or ideas: it is still plagiarism (ie. no intention is necessary).

4. Don’t leave your essay to the last minute. You are likely to fall into the trap of copying things from the web and/or your text and to do so without using quotation marks and/or references, which is plagiarism.Again, you are likely to be caught. As a marker, it is quite easy to pick these sorts of essays/assignments, so it is not worth the risk. In the long run, you are better off handing in a poor, but properly referenced essay– at least you won’t be in trouble for plagiarism!

5. Remember that failure to acknowledge someone else’s ideas is also plagiarism. If you re- word something that someone else has said (ie. you are using your own words, but the other person’s ideas), this is called ‘paraphrasing.’ If you paraphrase, you should place a reference at the end of that sentence (or at the end of the relevant part of the sentence) to acknowledge the source of the ideas. So long as you have not paraphrased too closely (ie. what you have written is almost the same as what the original author wrote), you don’t need to use quotation marks. If your ‘paraphrasing’ is very similar to the original source, you should probably use a quote, or partial quote, anyway, with quotation marks at the beginning and end of the quote, along with a reference.

6. Don’t just assume that because there’s never been a problem raised with your referencing before, that you’re referencing is fine. This may not be the case. If you are not sure about when, or how, to reference something, talk to someone before you submit your essay, eg. your tutor – they would probably rather assist you before hand than have problems when it comes to marking, such that the University’s policy on plagiarism has to be implemented!

Please CHAT WITH LIVE Assignment Advisor to know more about Referencing styles and Citations.

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