CO5121: LAW OF BUSINESS ORGANISATIONS

     

LEGAL RESEARCH ASSIGNMENT

 

To submit your electronic copy of the assignment, follow these instructions:

1. Go to your subject site in LearnJCU, select Assessment from the left-hand navigation bar.
2. Click on the ‘Assessment One – Assignment’ link.
3. Click on the ‘Assessment One – Assignment Submission’ link.
4. Note carefully the instructions for the submission.
5. Click on ‘Browse My Computer’.
6. Attach the assignment document and click ‘Submit’.

 Assessment Questions

Students are to answer ALL parts.

“The Corporations Act 2001 (Cth) has very recently been amended so that it is now more difficult for a group of small shareholders to demand a meeting of the company –a group of 100 shareholders acting in concert can no longer force the board to do so.”

Analyse and discuss this statement in respect of the previous law, any historical cases dealing with the sections now amended, and the recent legislative reform.(15 marks)

1. What research methodologies did you adopt to answer the above law reform/new legal development question?  Briefly outline your approach to researching this law reform problem – the databases checked; sources used; websites visited etc.  (5 marks)
2. Peggy was a director of Company X. In the course of undertaking her role, she came across information about a potential merger between two rival telecommunications companies and used that information to buy shares for herself.  What legal problems, if any, does she face?   What further information would she need?  Would her position differ if she was a partner in a firm rather than a director of a company? (10 marks)

Penalty For Late Submission: The penalty for late submission of assignments without an extension having been granted is the loss of 5% of the total marks available (for the piece of assessment) per day.A mark of zero is possible after a submission delay of 20 days.

Application for Extension:Students who wish to apply for an extension must make application directly to the lecturer in advance of the due date. Applications for an extension made after the due date will be rejected unless sound reasons for not doing so are provided.

In fairness to all students, extensions to the Due Date will only be granted in exceptional circumstances and where there is cogent evidence supporting the need for extension.  If an extension is applied for close to the due date, normally the assumption of the lecturer will be that the student has had considerable time to work on the task and has done so consistently. The lecturer may require the student to produce their work completed to the time of the request for an extension. A failure to produce the work completed to date will result in the application being rejected.

Where the application is made on the basis of a medical certificate, the certificate must cover the entire period from the time the assignment was released to the time the application for extension is made.

Application for Review of Grade: Requests for an informal review of their assessment should be made to lecturer. The lecturer will provide some feedback on the assignment itself and via the Learning Criteria Sheet.

Please note that all enquiries and concerns relating to assessment review and teaching and learning issues should, in the first instance, be addressed to the Lecturer/Subject Coordinator. The Dean’s office will not enter into discussion without evidence that the Lecturer/Subject Coordinator has been formally consulted.

Word Limit: Assignment –2000+/- 10% words. Note that the emphasis should not be on length but rather on clarity and precision of thought and expression. An accurate Word Count must be included at the end of the paper.

WordCount Not Recorded: Students will be penalized 2 marks for failing to provide an accurate word count on the assignment.

WordCount Exceeded: Students will be penalized 1 mark for each 100 words (or part thereof after the first 100 words) above the 2200absolute word limit.

            Style Guide:For law-based assignments, footnotes or end notes and a bibliography are the appropriate referencing methodology. These are not included in calculating the paper’s word count (unless the footnote is used for extremely long passages of text that may run the risk of circumventing the word limit).Referencing for all Law assignments must be based on the following – Australian Guide to Legal Citation (latest edition) University of Melbourne.

Marking Schedule:A Criteria for Learning and Assessment Sheet is attached. Marks will be primarily awarded for content, analysis and reasoning (based on sound research) but expression, grammar and spelling, presentation and form will also be taken into account (especially where such detracts from the strength of the argument/analysis). Regard shall be had to the following criteria:

1. Demonstrated familiarity with the relevant law and policies (based on sound research);
2. Evaluation of arguments/critical analysis of the relevant law and policies (based on sound research);
3. Development of argument (based on sound research);
4. Structure and organisation;
5. Originality;
6. Quality of expression, spelling, grammar, and punctuation; and
7. Referencing and bibliography.

Structure:Submissions should meet all accepted standards of University research.Generally this will include a summaryof the main points argument/answer to the question.  The assignment should also typically include:

• A brief statement of the law/development or change proposal/development;
• Analysis of the law and associated issues, properly referenced. For example, the analysis might address what was/is the change meant to achieve and why; what has been achieved and/or whether it likely to achieve that goal; whether is it too early to determine; what the case law and scholarly analysis indicate.
• A conclusion consisting of a summary showing how the analysis supports the opinions/deductions presented. It is significant to note that good research supports good analysis.Headings are generally useful as they guide the writing and the reader.

Research Skills:Please refer to Milne, S & Tucker, K, A Practical Guide to Legal Research, latest edition, Law Book Company.It is expected that postgraduate students will be familiar with research databases and methodologies that are relevant to the assignment.

Policy on Plagiarism: Please note the link on the web site to the University’s policy on plagiarism. This WILL be enforced.

Guiding Questions for Part A:

• What was the name/title of the amendment and when did it pass the Parliament?
• What are the specific details of the changes?
• Why was the law changed?
• What were/are the scholarly and policy concerns behind the amendment?
• What are the perceived or claimed benefits of the amendment?
• What criticisms have been levelled at the amendments?
• Which view appears to have more credence and why?

These questions are provided as a guide only to provide context for the actual question. It is not intended that they should be addressed individually or be used as headings.

Guide to Part C

Peggy was a director of Company X. In the course of undertaking her role, she came across information about a potential merger between two rival telecommunications companies and used that information to buy shares for herself.  What legal problems, if any, does she face?   What further information would she need?  Would her position differ if she was a partner in a firm rather than a director of a company? (10 marks)

 

General Guidance

This question deals with Director’s duties, both statutory and fiduciary. I am issuing this Guide because we are not scheduled to cover this material until Seminar 7, which is of course , far too late to be of use given the 12 May submission date and for this I apologise. I will also take this fact into consideration when marking as well.

Structure:To begin, this part of the question does NOT need to be answered strictly in the ILAC formulation – it can be answered in discursive essay-style but it is a good idea to structure the answer broadly along the lines of an ILAC answer – commence with identifying what the issue is.  Then try to identify what law is relevant and how it applies to this particular problem. Finally, try to consider what is the likely outcome [conclusion] should the matter end up before the Court.

Reasoning: The first part of the question is fairly straightforward and deals in part with the Director’s duty to exercise powers for a proper purpose. (See L&H 13.2.10 and 13.2.135 and 13.2.145 to begin with]. Directors are under a fiduciary duty not to make undisclosed personal profits while acting in their position. [See L&H 13.3.105] The question doesn’t really provide much information as to the factual matrix surrounding the transaction so we have to speculate to some degree. I will allow quite a lot in the marking for reasonable speculation in the reasoning.

For example, when considering s181 CA [see below], consider whether Peggy may have been able to cause the company to gain a benefit or whether her behaviour has or might have caused the firm to suffer a loss or detriment [see L&H 13.3.170 and 13.3.230 and 13.3.255].

Another issue here is in relation to s182(1)(a). Consider whether Peggy has improperly used her position to gain an advantage for herself and what obligations arise from that. Consider whether she has acted “improperly”. [See L&H 13.3.120-125]  Also look at s183(1)(a) and whether she has used information to gain an advantage for herself. [see L&H 13.3.315] There is probably no point in speculating as to whether her use of information has caused the company any detriment – we simply don’t have enough information with respect to this.

Directors also have a duty to avoid conflicts of interest [see L&H 13.3.05 – 13.3.35] and to disclose that interest when required to do so (s191 CA). Consider whether Peggy has acquired a potential to make a profit, whether it creates a conflict of interest, and what her duties are with regard to disclosing that potential profit.

Regarding the last part as to whether her position would differ in other circumstances, this requires a brief comparison between the duties of partners and those of Directors in limited liability companies. We did not cover this aspect of Partnership law specifically but it only requires a consideration of the statutory and fiduciary obligations that the person has to the partnership firm as opposed to a corporation. This can be brief – the whole question is only valued at 10 marks so don’t get carried away with this aspect of the question.

 

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