Research Assignment Details; LAW

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LAW00004 Company Law

SCHOOL OF LAW & JUSTICE

Session 2, 2018

RESEARCH ASSIGNMENT •  Weighting: 50% •  Due : By 11:59pm 27 August 2018 •  Length: 2400 words (+100 maximum) •  Submission method: turnitin

Note: The headings, footnotes (or in-text referencing), bibliography & coversheet do not form part of the word count.

Research Assignment

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Marking Criteria The assignment will be marked according to the following criteria:

•  Research (40%) •  Analysis (50%) •  Technical aspects (10%)

•  Go to the Assessment details on Blackboard.

'Research Assignment’

Assignment Structure • Introduction • body and • conclusion. 

What is required?

•  The focus is on explaining the fiduciary concept in detail – the statement helps you do this.

•  Give specific examples from (a), (b) & (c). •  Consider using subheadings to identify to the reader

(and importantly the marker) what you are discussing. (refers to (a), (b) & (c) of the assignment topic).

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'Research Assignment’

Consider the following headings as a guide: • Introduction • Fiduciary concept. • the general law - promoters • Partnership Act • Corporations Act 2001 (Cth) • Conclusion

'Research Assignment’ • As the name ‘research Assignment’ suggests your discussion and analysis should be supported by a depth of research. 

• Important: note the marking criteria. • To avoid plagiarism you will need to correctly cite the source of the information.

• Direct quotes require inverted commas and pinpoint citation . 

• The assessment item requires a depth of research. You are expected to cite the research, including cases that discuss the fiduciary concept in (a), (b) & (c). 

Cite the source •  Cite material correctly •   Use inverted commas around ‘quoted material’ and

pinpoint citation (para & page numbers). •  Quoted material is when you use exact words from

an original source. •  Paraphrased or summarised material (correctly

cited) in a manner to develop your discussion is a better approach to excessive quoting.  

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**Read the Assignment Topic carefully.

•  Give examples from: -  the general law (Australian law) (as it relates to the

formation of a company); (ie. Case/s) -  the Partnership Act; (ie. section/s and case/s) AND -  the Corporations Act 2001 (Cth) (ie. section/s and case/s

•  Do not forget about the assignment statement. •  Focus on Australian law (but English law could also

be relevant). Not USA law. .

Research • The main focus of you discussion should be on explaining the 'fiduciary concept'. 

• Your research should include cases and commentary. 

• Case law assists to demonstrate the legal principles. 

• The commentary should include text books and journal articles.  

• Avoid writing out large extracts from the legislation.

• Avoid writing out large extracts from the cases.  • Use cases and material to support your own discussion on the fiduciary concept. 

'Research Assignment’ – case law

•  Use of ‘case law’ under each example (a,b & c) •  Case law will assist to demonstrate your

understanding and explanation of the fiduciary concept.

•  The term ‘case law’ includes general law cases and cases that interpret the relevant statutory provisions.

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'Research Assignment’ – case law •  You are not expected to do in depth case analyses. •  When discussing cases avoid going off tangents.

Stay connected with the assignment topic: (assess word count allocation.)

•  For the purpose of the assignment the main thing you should get from the cases is the legal principles (what the law is).

Assignment & case law •    For example in Aequitas v AEFC [2001] NSWSC 14

[346-348] (Justice Austin J) states the legal principles relating to identifying promoters.

•  It is helpful to provide a brief description what the case was about and proceed to discuss the legal principles noted in the case.

'Research Assignment’ – case law  A brief note on what the case is about might only be one sentence or even a few words.   For example the words “in Gluckstein v Barnes [1900] AC 240, Lord Halsbury said (at 247)…” could be restated with a brief factual note as follows:  “in Gluckstein v Barnes [1900] AC 240, a case involving promoters making a secret profit,  Lord Halsbury said (at 247)…” .

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Referencing

•  You can use either Harvard or AGLC3 •  If you are using Harvard use a bibliography (all

sources consulted).  •  If you use footnotes (AGLC3) use a reference list

(only sources cited).

How do I reference the Partnership Act in  reference list?

In NSW

•  Partnership Act 1892 (NSW) (hereinafter called Partnership Act) OR (‘Partnership Act’)

•  s 1 Partnership Act 1892 (NSW) •  ss 1 and 2 Partnership Act 1892 (NSW)

How do I reference the Corporations Act?

•  Corporations Act 2001 (Cth) (hereinafter called Corporations Act) OR (‘Corporations Act’)

•  s 124 Corporations Act 2001 (Cth) •  ss 124 and 125 Corporations Act 2001 (Cth)

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Pinpoint Referencing - Cases

•  Charlton v Baber [2003] NSWSC 745' is fine for the reference list. 

•  However when you reference it in your discussion you should identify the judgment and paragraph number.  This is essential for direct quotes.

•  For example  Charlton v Baber [2003] NSWSC 745 [52] (Barrett J), note [52] represents paragraph 52 of Justice Barrett’s reported judgment.

How to reference the partnership material provided on BB?

•  The reference is Turner C and Trone J, Australian Commercial Law, 30th ed, Thomson Reuters, 2014

•  Remember - Where relevant - add the paragraph and/or page number.

Is it OK to reference Wikipedia?

•  It is preferred if you research from an authoritative source. 

•  If you are using content from Wikipedia you will have to reference it otherwise you may find yourself facing questions regarding academic misconduct (plagiarism). 

•  Students who use Wikipedia as their main source of information may find it difficult to satisfy the research requirements of the assessment task.

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Locating Partnership law cases (especially re fiduciary duties?)

•  Try the 'noteup' tool in austlii.  •  For example ‘Go to’ the Partnership Act in austlii  •  open a relevant sections.  •  check on the 'note-up' tab •  view the cases.

Does director's fiduciary duty include “Duty of Obedience” & “Duty of Care”？

•  Under Australian law, fiduciary duties do not include the duty of care. 

•  ‘Duty of care’ is owed under the common law and equity but it is not fiduciary.  

•  Australian courts have not identified a specific ‘duty of obedience’.  However the fiduciary duties are cast in a manner to avoid disobedience. 

Locating cases via austlii

•  Try the ‘advance search' tool in austlii.  •  For example ‘Go to’ the home page

in www.austlii.edu.au •  Check ! in the search box and check ‘advanced

search’. •  Check ! next to Select the database(s)’ and check ! next to ‘All Case Law Databases.’ 

•  Enter search term, for example, ‘fiduciary and partnership’

•  view the cases.

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Relevant Jurisdiction? •  Ensure your research applies to Australian law.  The

fiduciary law in the USA is not the same as Australia.  There are similarities and there are also differences. 

•  UK law is fine but avoid citing the US position unless you are able to do a comparative analysis or are confident that what is said will apply to Australia. 

S180: Why is ‘duty of care’ not included in fiduciary duties? •  Not all of the directors’ duties are fiduciary.  •  Section 180 stems from the general law (common

law tort and equity) but is not fiduciary. •  Your research should assist you in identifying the

fiduciary concept within other directors’ statutory duties. 

Partnership Act 1892 (NSW) •  Introduction to the Partnership Act 1892 (NSW) –

herein after referred to as the Partnership Act •  GO TO www.austlii.edu.au: NSW/NSW Legislation/

New South Wales Consolidated Acts/ ‘P’/ PARTNERSHIP ACT 1892

via Table of provisions, familiarise self with the contents.

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Corporations Act 2001 (Cth) •  GO TO www.austlii.edu.au: •  Cth/ Cth Legislation/

Commonwealth Consolidated Acts/ ‘C’/ Corporations Act 2001 (Cth)

via Table of provisions, familiarise self with the contents.