Legal Institutions and Process Assessment 2: Annotated Bibliography

Due: By 9 a.m. on Monday of Week 4 (NSW time)
Weighting: 40%
Word Limit: 1,500 (excluding cell 1, cell 2 and regular Bibliography)
Learning Outcomes
Assessment 2 assesses the following Learning Outcomes:
(2) describe the ways in which formal law-making bodies function in the Australian context
(3) demonstrate familiarity with the formal and informal institutions and processes which shape the development of Australian law
(7) engage in academic research utilising and acknowledging a variety of sources.
You work in in a legal practice and ultimately will be required to provide advice to the firm’s client, Kat. Kat has detailed the following facts.
Factual Scenario
Floating Fun Pty Ltd is a company which specialises in the sale of inflatable pink flamingo aquatic toys. It operates in and is registered in the state of Victoria. Fay is the Director of Floating Fun.
Tough Toys Pty Ltd is the company which manufactures the inflatable aquatic toys for Floating Fun. It also operates in and is registered in Victoria. Tom is the Director of Tough Toys.
Fay had instructed Tom that all aquatic toys require a warning to be printed on them. In particular, the warning must be printed in black ink so it will show on the pink background and it had to read as follows:
Ed is an employee of Tough Toys Pty Ltd who had a suspicion he was about to be made redundant. In what he considered to be a last effort to get back at the company, he changed the black ink cartridges in the manufacturing plant to pink ink cartridges. When Tom inspected the next batch of 1,000 aquatic flamingo toys, he is outraged because, of course, the pink warning was not visible on the pink toys.
Tough Toys Pty Ltd had been running at a loss for most of the financial year, and Tom feared that if this situation were not dealt with somehow then he might have to file for bankruptcy. And so he decided to make the best of a bad situation. He decided not to say anything to anyone else and gave a very clear instruction to Ed not to tell anyone else, and put the 1,000 toys up for sale on an online auction site.
To create the advertisement and to enter the auction as the vendor, Tom used the account details of Tough Toys Pty Ltd. But for the promotional details, Tom provided the full name, ACN and public profile details of Floating Fun Pty Ltd.
In terms of the listing itself, the 1,000 non-compliant toys were listed as a ‘Buy It Now’ purchase on a wholesale online auction site. To push things along a little, Tom included the following as part of the advertisement:
Click within the next 10 seconds to order these toys at the fabulously discounted price of $20,000.
Kat, a sole trader of a children’s store in Victoria, had previously dealt with Floating Fun and Fay and had come to trust the company. And so, when she saw the online advertisement she considered it was a good buy and was interested. But she also felt under some pressure to decide quickly – she had already taken some time to read the advertisement and she had only ten seconds in total. She quickly bid the amount and so won the purchase.
Tough Toys shipped the goods to Kat on credit because, even though Kat has not yet paid the $20,000, Tom is keen to get things moving to resolve his problems as soon as possible.
When the goods arrived, Kat inspected them and was shocked because, despite what she knew to be Fay’s clear standards and instructions in the past, the warning label is unreadable. Kat contacted Fay to find out what had happened and Fay advised Kat that she had never seen this batch of the floating toys and that they must have come directly from Tough Toys Pty Ltd.
Kat now seeks your firm’s advice about any possible methods of recourse against Tough Toys Pty Ltd at common law, equity and statute law. The file has been allocated to you.
You must now undertake some initial legal research to:
(i) to locate ten sources that are relevant to advising Kat,
(ii) to cite those sources and to demonstrate how you found them, and
(iii) undertake an initial analysis of each source to indicate how and why it might assist Kat to achieve any remedies potentially available to her.
Assessment 2 is a task to develop your legal research and writing skills, and to start you on the track of thinking about how the law can be applied in different situations (or not). The focus is on training you to be able to look at a factual situation and to make an assessment about what are the material facts (that is, the relevant facts) that have the potential to enliven areas of the law and:
• to locate some of that law using legal research steps
• to cite those sources in accordance with the AGLC style
• to give an initial account about why there is an arguable fit (between those facts and the source of law that has been cited as potentially applicable).
The ability to make the assessment about what is potentially applicable law comes with a little knowledge of the law and with experience. And the fact that you are not expected to know the potentially applicable law in this task in advance or in detail is the reason you have been provided with the areas of law that are potentially applicable (see point (2) below). You will be assessed primarily on (please see the Marking Guide also):
• how you cite sources of law
• demonstration of legal research steps
• demonstrate the development of a relevant approach to connecting and considering the relationship between facts and potentially applicable law.
In terms of the relationship between Assessment 2 and Assessment 4, the following is noted. The ultimate purpose of Assessment 4 is to consider and to assess the ACCC statement provided in the instructions for that task. However, rather than undertaking that consideration and assessment in the abstract, you are to use the factual scenario of Assessment 2 (using the research you do for this task – and you can add new research if you wish) to provide some initial grounding for the Assessment 4 discussion. This means that in Assessment 4 you can start by discussing what your client’s situation is likely to be and then to use that discussion as a reference point when you move on to the main purpose of Assessment 4 – which, as noted, is to consider what the ACCC statement says. In other words, use your client’s situation as a platform to consider and to discuss how well the Anglo-Australian legal system is working for people in situations similar to your clients, including some overview of the historical development of this law and some critical assessment of how well it is working. There is not right or wrong answer in this task – it will be the quality of your argument and discussion that matters.
For the moment, while you ought to be aware of what will be required in Assessment 4, your focus is Assessment 2. For Assessment 2:
(1) Read the factual scenario carefully.
(2) Research the law that arises from these facts. You are instructed that the factual scenario enlivens laws primarily in the areas of:
(i) contract law – including remedies in contract law and/or equity
(ii) misleading and deceptive conduct together with public enforcement action in statutory consumer law
(iii) duress in equity and/or harassment or coercion in statutory consumer law
(iv) safety standards together with public enforcement action in statutory consumer law.
Note: These are the areas of law to consider – remember a part of your task is to make a final decision about which areas of law are ultimately applicable to the facts.
(3) As a starting point for your research you are referred to the following materials:
(i) Paterson, Jeannie, ‘Consumer Affairs: Introducing the new, National Australian Consumer Law’ (2011) 36(1) Alternative Law Journal 50
(ii) Andrew Coleman et al, Law in Commerce (Lexis Nexis, 7th ed, 2020) [3.21-3.27], [4.22], [6.9], [8.1-8.2], [8.20-8.24], [8.38-8.46]
(iii) The Australian Consumer Law: A framework overview. Note: this material is accessible as a Word document only. The link to the Word document appears on line 4 of the text (note the link to the PDF document does not work):
(iv) The Australian Consumer Law: A Guide to Provisions:
(v) Australian Consumer Law notes prepared by Digby Von Muenster Law – see documents attached to Assessment 2 instructions
(vi) Australian Competition and Consumer Commission, ‘Ingredients Labelling on Cosmetics: supplier guide’
(vii) Beaton-Wells, Caron ‘Private Enforcement of Competition Law in Australia – Inching Forwards?’ (2016) 39 Melbourne University Law Review 681 (Note: this article is about competition law but it does have broader contextual value for Assessments 2 and 4 which are based on/oriented towards consumer law. This article is especially useful for Assessment 4).
• These materials contain more than is relevant to the facts of the scenario; part of your task is to analyse which parts of the materials are relevant and applicable.
(4) Compile an Annotated Bibliography in which you undertake research and analysis for relevant law and include the ten most relevant sources located.
(5) Your sources must include at least one source from each of the following categories:
(i) a case
(ii) legislation, and
(iii) a secondary source.
(6) It is recommended that you use the template provided. The template is already set out for ten sources and includes cells for the three fields of information required for each source. Note:
(i) the top cell requires you to reference the source according to the AGLC referencing style for Bibliographies;
(ii) the middle cell requires you to demonstrate how you located the source contained in your Bibliography in a short list underneath each source. Document your research steps in an abbreviated list form (dot points is acceptable for this step). Check your method is clear and briefly states each step taken to locate the information. Note: including something like ‘Database’ does not demonstrate any relevant legal research skills;
(iii) the bottom cell requires you to provide an initial analysis of the relevance of the source to the factual scenario. Where relevant, this analysis is required to integrate a description of the or the judicial role of Australian courts and/or the legislative function of Australian parliaments. This means that in addition to saying what aspects of the law are potentially relevant, when relevant, you ought to note how and why the source is relevant (jurisdiction, binding precedent, etc).
(7) With respect to your initial analysis: as much as possible paraphrase the main ideas found in each source. If you do use quotes in this analysis be sure to keep them brief. For the purposes of this Annotated Bibliography (only), you are not required to provide a reference (via a footnote) for any paraphrased ideas (which is usually a requirement in academic work), but you must do so for any direct quotes.
(8) Referencing and regular Bibliography:
(i) you are required to include a regular Bibliography. Note: Assessment 2, while developing research and bibliographic skills, is the content of the assignment and it does not do the work of a regular Bibliography. For this reason so you must also include a regular Bibliography (that is, separately to the assignment content)
(ii) all of your referencing must accord with the with the Australian Guide to Legal Citation (‘the AGLC’)
(iii) the ten sources in the Annotated Bibliography (listed in the top cell) must accord with the style for entries in a Bibliography. See rule 1.13 of the AGLC for details (note: you will need to refer to other rules, too, to accord with rule 1.13)
(iv) in your initial analysis you may use footnotes; if you do, please be sure to include the sources of those footnotes in the (regular) Bibliography
(v) any material that is directly used or quoted must be referenced by a footnote and, as noted, that source must be included in the (regular) Bibliography
(vi) material that influences or guides your thinking in general but is not directly used or quoted) must be included in the (regular) Bibliography.
(9) Materials provided at (3) above: it is not required to include any or all of these materials as one of your ten sources, but you may do so if you think any of them is among the ten most relevant sources. Note:
(i) If provided material guides your learning and further research but you do not include it in your ten sources, then you must include it in the regular Bibliography that must be included with this paper (as noted Assessment 2, while developing research and bibliographic skills, does not do the work of a regular Bibliography)
(ii) similarly, if a provided material refers to other material that assists you in your thinking as you develop your analysis but you do not cite that other material as one of your ten relevant sources or even at all in your analysis then, again because that material has played a role in your thinking, you must include it in the regular Bibliography. For example, if a chapter in a textbook refers to the case of Car & Universal Finance Co Ltd v Caldwell [1965] 1 QB 525 (CA) and you go on to locate the full text of this case and it plays a role in your thinking even though it is not one of your sources or even directly mentioned in your initial analysis, then you must to cite this material in your Bibliography.
(10) Relationship between Assessment 2 and Assessment 4: before you even start Assessment 2 be sure also to read the instructions for Assessment 4 to ensure you appreciate the progression between these two assessment tasks. Assessment 2 is an initial research task and, on the basis of the same factual scenario, Assessment 4 is an essay which will draw on the initial research and analysis undertaken in Assessment 2. It will assist you as you undertake Assessment 2 to have a sense of Assessment 4.
(11) Word Count: only the words of the third cell (the initial analysis of the source) will be counted towards the word count. Given the word count is 1,500 words and there are ten sources, this gives you an average of 150 words for each initial analysis.
(12) Marking Criteria: the marking criteria (which are available to you to view in advance) are developed to assist you to understand the bases upon which your work will be assessed and to have a sense of the standards that will be applied to each criterion. Ensure you address all aspects of the marking criteria in your response.
(13) Submission must include Cover Sheet: your final submission (ie: after you have submitted your paper to obtain a Turnitin result) must include a fully completed Cover Sheet. Insert the Cover Sheet so it becomes the first page of your document.
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