taxation law

TLAW603 – Taxation Law & Practice

Legal Writing Resources1

This resource provides knowledge and advice about legal writing and other important academic skills, such as referencing.

Some people suggest that there is no such thing as 'legal writing'; there is simply good writing applied in the discipline of law. This is true in one sense: when writing in law, as in any discipline, you should aim to produce writing that achieves its purpose and communicates clearly to its reader.

On the other hand, it is possible to identify at least three categories of writing that could be described as ‘legal writing’ for different reasons:

• Writing that has a legal effect, such as legislation, judgments of the courts, and documents such as contracts, deeds and wills.

• Pieces of work that are based on legal analysis - case notes (which are summaries of court judgments) and letters of advice (or in other terms, a problem question response), which are peculiar to the discipline of law.

• Writing that could be described as legal writing because it is about law or for legal readers, such as essays (about law), articles in law journals, and legal reports or submissions.

While there are many different types of documents a student will read, you will be expected to learn how to write a small subset of these:

• legal essays • problem responses • case notes.

Writing General Elements Before looking at specific genres of legal writing, it is helpful to remember the ‘big picture’ in determining the characteristics of good legal writing. Generally, good ‘legal’ writing is simply good writing. Good writing is clear (well structured, with smooth transitions and appropriate vocabulary), accessible (written in plain English, engaging), and attentive to purpose and audience.

In law, characteristics particularly valued include accuracy, precision, succinctness, consistency, formality, and the appropriate use of primary and secondary materials.

1 This writing guide is largely based on the University of Sydney Law School Legal Writing Resource Guide 2020.

This section draws a distinction between (and provides guidance about) aspects of writing that we have identified as particularly problematic for students, and more general elements of good writing.

Writing in Plain English Being able to write in plain English is essential, whether you are writing an essay, problem question response or even in practice as a lawyer drafting contracts and other documents. Writing in plain English means ensuring that your writing is clear and effective for its intended purpose.

It does not mean ‘dumbing down’ your language - writing at a high level of sophistication is required for high grades. Rather, it emphasises the avoidance of artificial complications that can arise through the use of antiquated words and phrases, as well as attention to sentence and paragraph structure, organisation and design.

The information contained here on plain English is not exhaustive; it is aimed at providing an introduction to the concept and assisting in your own legal writing. In order to write in plain English, the following common pitfalls of legal writing should be avoided:

• wordiness and redundancy • foreign and antiquated words and phrases, legalese and jargon • overuse of the passive voice • using excessively long sentences and paragraphs • omitting necessary words and including unnecessary words.

Wordiness and redundancy

Students have a tendency to use more words when fewer would suffice. They also tend to use tautologies (i.e. using different words to say the same thing, thereby being needlessly repetitive (and eating up the often valuable word count!). Using more words that do not offer additional meaning makes a piece of writing harder to read and diminishes clarity and precision. An example of wordiness and redundancy:

Even assuming that the fog caused injury to Roelke, Amskills had no duty to prevent that injury because it was idiosyncratic and Amskills could not have been expected to foresee such injury.

By omitting unnecessary words, the sentence becomes easier to read and the meaning clearer:

Even assuming causation, Amskills should not be found negligent for the injury to Roelke from the fog, as this injury was unforeseeable.

For exercises to practise avoiding wordiness and redundancy, see Bryan Garner’s ‘Legal writing in Plain English’.

Foreign and antiquated words and phrases, legalese and jargon

In an attempt to sound sophisticated, students often use words and phrases that are antiquated, foreign, or jargonistic. This often reduces the precision of the piece of writing, making it harder to read. It is helpful to identify two categories for these types of words.

The first category is those Latin words or jargon that often convey a precise meaning. Eg Prima facie, ipso facto, a fortiori, inter alia, ultra vires. These words certainly have a place in legal writing, but should still be used with caution. They should be used only where

• their precise meaning is understood and • it is appropriate in the situation to use the word.

In other words, do not use a Latin term in order to sound sophisticated - use it in order to convey a specific meaning.

The second category of words, however, should never be used. They are antiquated and unnecessary. Examples of these include hereto, thereto, said, aforementioned, thereupon, wherein, aforesaid, heretofore, and hereinafter. Here is an example of what to avoid:

‘The Trustee Act 1925 (NSW), hereinafter ‘the 1925 Act,’ is one example of the aforementioned statutory summaries of trustees’ duties.’

Try instead:

‘The Trustee Act 1925 (NSW) (‘1925 Act’), is one example of the statutory summaries of trustees’ duties outlined in paragraph four above.’

For exercises to practise simplifying jargon, see Bryan Garner’s Legal writing in Plain English.

Overuse of the passive voice

The passive voice is a grammatical construction that makes the noun of an active sentence into the subject of the sentence. The active voice is often preferred over the passive voice. This is for two reasons:

• The active voice is more direct, and you may need fewer words to convey the same meaning. • The active voice may provide more information, as it identifies the subject, whereas the passive voice can be

obscure or confusing.

This is not to suggest that the passive voice should never be used. It is useful, for example, where the ‘doer’ of an act is unknown or irrelevant.

Examples:

• Active: Mary filmed the car accident. • Passive: The car accident was filmed by Mary.

The passive construction of this sentence is longer and puts the noun, which is the object, up front and the actor or subject later. This might be appropriate if the important information in the sentence is that the accident was filmed rather than the name of the person who filmed it. In the passive voice, the sentence could be shortened further to ‘The car accident was filmed.’ and this omits the actor altogether. Again, this might be appropriate either because the focus is intended to be on the filming or because the actor is not known.

As a general rule however, it is best to use the active voice by default, and only switch to passive for a specific purpose or reason.

Using excessively long sentences and paragraphs

Shorter sentences and paragraphs convey meaning better than longer sentences and paragraphs. The longer the paragraph, the less likely it is that there is a distinguishable topic sentence, or the information in the paragraph is related to the topic sentence.

Generally shorter sentences and paragraphs are easier to read and understand, although you should avoid single sentence paragraphs. Paragraphs with suitable headings break up your argument and signpost the direction of your argument.

Here is an example of what to avoid:

‘As any credit in a bank account amounts to a debt owed to the customer - and is thus a chose in action and not larcenable property - money cannot be stolen from a bank account in larceny, nor does any payment of funds out of the account constitute taking without consent, since such a payment amounts to a consensual passing of property.’

Try instead:

‘[U]nder larceny, money cannot be stolen from a bank account. This is because any credit in a bank account amounts to a debt owed to the customer, and is thus a chose in action and not larcenable property. Further, any payment of funds out of the account amounts to a consensual passing of property by the bank and thus not taking without consent.’2

For exercises to practise keeping sentences short and paragraph length see Bryan Garner’s ‘Legal writing in Plain English’. Omitting necessary words and including unnecessary words Students often make the mistake of omitting articles such as 'the' or 'a', particularly in their restatement of facts. For example: 'Defendant turned left and hit car. Police arrived 15 minutes later.’ Apart from sounding like a parody of a police report, such omissions are unnecessary and grammatically incorrect. They also prove difficult to read, as they break up the normal flow of a sentence. Students may do this in an attempt to cut words and reach the word count, but editing which interferes with the grammatical integrity of your work should be avoided. Conversely, students have also picked up a habit of using unnecessary words - for example 'the said contract' (referring to a particular contract). The exact object you are referring to should be clear by your writing - the word 'said', in this context, is unnecessary.

Other good writing notes

While there are particular bad writing habits that students can fall into, the following areas of ‘good writing’ are also worth paying attention to:

2 Alex Steel, ‘Issues with the Use of the Theft Offence to Protect Intangible Property’ (2008) 30 Sydney Law Review 575, 589.

• Establishing your own ‘voice’ in expressing your argument

• Writing in a gender neutral fashion

• Taking care with grammar and sophisticated vocabulary

• Maintaining a consistent, formal tone.

Additional writing resources You may find the following resources assist you with general elements of good writing as well as answering problem questions:

• Kirby's ten commandments • http://press-pubs.uchicago.edu/garner/ • Steven Vaughan, University of Bristol

Legal Essays What is a legal essay? An essay is a piece of writing that objectively and critically explores, analyses or evaluates a particular issue or area of the law. Good essays contain balanced analysis, but they are also persuasive, using supported arguments to guide the reader to a conclusion.

Why are legal essays given as assessment tasks?

Legal essays are set as assessment tasks to enable you to:

• Read primary and secondary sources of law, • Analyse these sources critically, • Synthesise ideas and apply them in original ways, and • Develop a capacity to think and communicate, through writing.

Legal essays are always marked against the assessment grading guidelines.

How do I approach a legal essay?

Before you even put pen to paper, these are some of the steps that you should be thinking about in preparing to write a legal essay.

Read the question

As with all assessment tasks, you must read the question carefully and pay specific attention to the words used and what is required of you. As you work your way through research and writing, it is worth returning to the question regularly to ensure that you have read it carefully and are addressing the question that has been asked.

Directed legal research

Students often feel overwhelmed by the task of researching. This is because essay questions can be worded quite broadly, and can conceivably cover an infinite number of issues. It is a good idea to begin by reading generally on the topic, with textbooks being a good starting point. Particularly, the footnotes or references in textbooks are a valuable resource in helping you to pinpoint important primary and secondary sources of law.

You can then locate and read those further resources that you deem necessary. The task of researching is iterative in that the more you read, the more resources and references you will be exposed to, allowing you to take your own argument in different directions.

The research you undertake must uncover information that is accurate, relevant and up to date - criteria that will make your arguments legally compelling. Be mindful of the task at hand. The amount of research that you do for a 2000-word essay will obviously be significantly different to the level of research undertaken for a thesis or dissertation.

Planning Once you have read the question and started some (but not all) of your research on the topic area, it is well worth planning out what you think you want to say. What are the contentious issues in the topic? Are there different sides to an argument about a contested issue? What side do you favour? An essay is NOT a summary of other people’s ideas - a good essay will utilise the ideas of others to support a unique argument.

Think about what you want to establish, why, and how. At this stage, it may be useful to prepare an outline or mind map of your arguments. Your essay is not merely an attempt to write everything you know about a topic - it should introduce, explore and conclude an issue or issues logically and comprehensively.

How do I write a legal essay? Although good legal essays come in a variety of shapes, sizes and forms, there are a number of key requirements that should be considered. An essay should answer the question posed in a critical way, and not be a mere description of a legal problem. Essays must synthesise and reference material, but also express the writer’s own voice. Assertions should be supported with evidence and logical explanations. As always, writing should be clear, accurate, succinct, formal, and use plain English, while abiding by appropriate referencing requirements and academic honesty.

Legal essays are always marked against the assessment grading guidelines.

Structure and organisation

How you structure and organise your essay is just as important as the research you have done. If your essay does not ‘flow’ or your material is presented in a haphazard fashion, not even exhaustive research will improve your grade. Structure and organisation will be examined in a little more detail below.

Writing style, tone and purpose As with all pieces of work, legal essays should follow the advice provided in General elements of good writing. That section provides guidance on writing in plain English and avoiding some of the common traps fallen into by law students, as well as providing links to resources explaining more general elements of good writing.

Structure and organisation As mentioned above, the structure of your essay is very important. If your essay does not ‘flow’ or your material is presented in a haphazard fashion, not even exhaustive research will improve your grade.

Title and sub-headings The title of your essay is what grabs the reader first. It should clearly inform the reader of the essay’s purpose or central thesis, providing a compelling reason to read the paper.

Good titles can be those that are straightforward, clearly identifying the legal question using terminology familiar to a particular audience.

e.g. Anthony Duggan, ‘Romalpa Agreements Post-PPSA’ (2011) 33 Sydney Law Review 645

Sometimes a more lyrical approach is appropriate to create interest or appeal to a more general audience.

e.g. Anthony Mason, ‘The Rule of Law in the Shadow of the Giant: The Hong Kong Experience’ (2011) 33 Sydney Law Review 622

As well as setting out a good structure in the introduction, it is useful, along the way, to further signpost your argument by using subheadings. These can serve to explaining what’s to come in each specific section of the essay.

Introduction A good introduction has four key elements. It provides a context to your discussion, primarily by articulating the question that the essay is designed to answer. It presents your thesis - ie the arguments you will be making. It clearly sets out the parameters of your discussion. Finally, it offers a brief outline of the structure of your essay - ‘signposting’ or guiding the reader through your various arguments. In addition, it is possible in an introduction to indicate what ‘answer’ or conclusion the essay will put forward.

State the question the essay is designed to answer It is important to set out the purpose of your essay in your introduction or abstract. This is so even when an essay topic has been prescribed for an assignment and you note on a cover sheet which question you’re addressing. Is the purpose to answer a question? If so, set out that question in the introduction and explain how you propose to answer it.

Sometimes an essay may not be answering a question. Instead, it may be something like a review of someone else’s work. Whether your essay is answering a question, or doing something else like reviewing another’s work, the important thing is to make the ‘terms of your inquiry’ clear for your reader. By making the purpose of your essay clear in your introduction you help your reader to follow your argument.

Sign-posting – guiding your reader

A hallmark of good essays is that they set out clearly in their introduction or abstract not only what question they are addressing, or what their purpose is, but also how it is they will answer the question posed. By putting in your introduction a description of how the essay will proceed, you alert readers to what to expect, and introduce them to the contours of the argument to come.

Body paragraphs The body paragraphs of an essay provide the context and analysis of your legal issue or situation. You will need to demonstrate that you have a sound understanding of the topic being discussed, and your arguments should be presented clearly and persuasively. Alternative positions or sides to the arguments you present should not be ignored - these may offer a rich counterpoint to your own viewpoint. They also indicate to the marker that you have considered the various contested aspects of an issue but have nonetheless come to a reasoned position pursuing a particular argument. There are various ways in which this analysis can be organised. You should experiment with different structures as you develop your ideas and choose a structure that supports your analysis. This section provides suggestions about how to guide your reader through the body of your essay.

Topic sentence It is important to indicate at the beginning of a paragraph the focus of the paragraph. This is achieved by using a topic sentence or sentences. As well as signposting to the reader what the paragraph is about, a topic sentence is a useful device for the writer to assess whether all the content in the paragraph is relevant.

Topic sentences can also be used to summarise a general position reflected in academic commentary, with the following paragraph going on to discuss the specific approaches taken or the finer details of divergence. In this article, topic sentences are used to set out that ‘some theorists have questioned the normative value of shareholder value,’ for instance, before getting into the specific views of individual commentators.

Transitions and paragraph conclusions Body paragraphs may canvass a variety of subjects, but the transitions between them should be seamless. This will prevent the essay from appearing disjointed. A good writer should not need to use specific transition words, but there are some that can be used for this purpose. For example, if a paragraph furthers a point previously made, transition words or phrases such as ‘moreover’ or ‘in addition’ may be useful; if the paragraph covers different ground, or poses the alternative argument, ‘however’ or ‘in contrast’ may be more appropriate. Each paragraph should also ‘conclude’, in a way related to the original question or topic posed in the paragraph’s topic sentence.

Conclusion Your conclusion must answer the question posed in your introduction. It should contain no new material and be relatively short when compared to the rest of the essay. Essentially, it reiterates the main argument you have proposed.

Your conclusion is your last opportunity to remind the reader what your essay set out to do, and how you accomplished it. Your conclusion should, therefore, revisit the question posed, and, briefly, summarise how you answered it. Whereas your introduction will set out what you proposed to do or show, your conclusion will talk of what you did achieve through the course of your essay.

Different approach for different types of assessment? When writing legal essays, students should aim for the ideal. However, note that under different conditions (such as an exam), students will not necessarily reach the ideal in respect of depth, clarity, eloquence or referencing detail.

A take home exam may not require exhaustive amounts of research. Instead, it may rely primarily on the materials that you have used throughout semester, in class and in your readings. Essays given as distinct assessment tasks, where you have a number of weeks or months to complete, are more likely to require independent and exhaustive research.

Finally, essays required under exam conditions will require students to draw on the knowledge gained throughout semester, through their readings and class attendance. Although it is impossible to guess the exact question asked in the exam, many students find it worthwhile to draw up essay ‘scaffolds’ that cover their basic ideas and structure of an essay, based on past exam questions or important concepts raised in the course. An exam essay will clearly not require the same level of referencing as a take home essay, but should still refer to primary and secondary sources to receive good marks. Principles of academic honesty still apply in an exam situation, especially open book exams, and you should acknowledge other authors' words e.g. using quotation marks.

See the Legal Essay Checklist on Moodle to assist you before submitting any essays.

Problem Questions What is a problem question? A problem question is normally based upon a fact scenario that could occur in real life. It is designed to let students demonstrate their capacity to identify legal issues and find the relevant legal principles in primary materials, their understanding of a particular area of the law and their skills in applying the law to a particular fact scenario in order to reach a conclusion about the likely or reasonably arguable legal outcome.

Problem questions are often posed as assessments in law school, either in the form of take-home assignments or in sit-down exams. You are asked to provide a response that is often framed as an advice. e.g. advise Peter whether he could succeed in a claim against Jana. This form of assessment is sometimes called an ‘issue spotting’ exercise because the goal is to spot and address each issue raised by a given fact scenario. However there is more to a good response to a problem question than simply identifying all the legal issues that arise from it.

Problem questions are often provided as a law school assessment because they reflect the typical activity in which most legal practitioners engage: the provision of legal advice. In essence, the response to a problem question should take the form of an advice that is a balanced and objective analysis of the current law as applied to the fact scenario. It should conclude with a view of the likely outcome of the client taking, or themselves being subject to, legal action.

A good problem response will be logically structured, accurate, clear and comprehensive, with each major issue dealt with systematically. Not all issues raised by a problem question will deserve equal treatment, and students need to demonstrate good judgement in deciding which issues are most important and require the deepest and lengthiest analysis. To reach a conclusion about how the law would apply to a specific fact scenario, the problem should normally be analysed using an IRAC (issue, rule application, conclusion) approach. This approach is helpful for considering every issue, but there may well be some overlap between issues, meaning that several issues can sometimes be addressed concurrently.

Why are problem questions given as assessment tasks? Problem questions are frequently used in teaching law and generally follow the format of asking students to discuss the legal consequences of a particular fact situation - often in the style of advising one or more of the parties. Problem questions develop and test students’ understanding of the legal principles in an area of the law, and their ability to apply principles to new facts and to present an answer logically. They are often designed to highlight difficult or unresolved areas in the case law, and so require students to assess the different sides of a particular issue.

In many ways, problems help develop the sorts of skills required by lawyers who must give advice to clients based on their description of an event or dispute, or, in the case of judges, who must make legal determinations based on the factual issues.

However, hypothetical problem situations differ from the real situation of advising clients because in the real world there are a range of other factors which may be equally as important as the abstract application of legal principles. For instance, the cost and inconvenience of litigation may mean that the best advice is not to pursue the matter, or to seek an out-of-court settlement. Alternatively, in real life the facts have to be proved, so weak evidence or poor witnesses may be detrimental to the case despite the strength of the legal argument. It is important to remember the full context of real legal problems, and in certain assessment tasks or Units of Study students may be asked to take these things into account in answering problem questions. It may ask you to give

some informed commentary on the current desirability or clarity of the current law, where you would be expected to draw on secondary commentary as well as giving your own views.

Generally, however, the assessment task will at least start by simply requiring you to apply the law to the facts as stated. Any extrinsic tasks, such as those listed above, should be expressly stated as required by your lecturer or tutor or in the assignment itself before becoming a major focal point of your response.

Problem questions are marked in reference to the assessment grading guidelines. They may include some research component, requiring you to look further than the sources set out in the course guide, or they may simply require you to answer the problem on the basis of the prescribed materials. Obviously, a problem question set in an exam assesses your understanding only of the prescribed materials that are listed in the course guide.

How do I approach a problem question? There are some basic steps you can take to develop a thorough and logically presented problem question response. Breaking the process into steps helps the writer avoid the feeling of being overwhelmed by detail, and helps to ensure the issues are dealt with systematically and comprehensively. You may feel that sometimes the process of separation - issues from legal rules, rules from application and then conclusion - is a little artificial. You are right, but bear in mind that it is merely a method or tool to help you think things through thoroughly and systematically.

In brief, the steps involved in analysing a legal problem are:

• Issue: identify the material facts and the legal issues they raise • Rule: set out the relevant legal principles, and give the “authority” for those principles (i.e. give the

reference or source - case law or a statute or in the absence of such a primary authority, the views of a secondary authority such as a textbook)

• Application: apply the legal principles to the facts. This is what judges do when they have to decide a case and when you are reading cases you will see that some judges do this more clearly than others!

• Conclusion: having applied the principles to the facts, determine the likely outcome. Of course judges have to come to a decision, whereas, as a lawyer or adviser, your task is to anticipate and analyse the legal arguments from all parties and give advice on the likely success of those arguments.

Quick Tips • Plan your answer • Use headings • Note what the question asks you • Raise all the issues, even if they seem unimportant or can be quickly dismissed as not applicable because of

a particular factual circumstance. Weight the issues by importance • Summarise but don’t repeat the facts, and only when necessary to let the reader know which issue you are

addressing • Cite case authorities for propositions of law and refer to relevant statutory provisions • Don’t go into all the legal principles or cases in detail unless crucial to resolving the issue

Preparation Before you attempt a problem-based assignment, we strongly advise you to do a general survey of the legal principles that relate to the problem. Start with the leading textbooks in the field, review applicable legislation and read some of the leading cases. By doing a general survey first, you will get an idea of all the potential issues that may arise and will thus be better equipped to identify them as issues in the particular problem. The general survey is also useful for your overall knowledge. Remember of course that textbooks get out of date and that there may be important decisions bearing on the issues which have been handed down since the book was published or which may have been referred to in classes. Depending on the task, you may need to use your legal research skills to check recent developments, such as whether the relevant cases or legislation have been applied or considered in recent cases.

It is also worth considering not just the individual topics assessable in the problem question response, but rather, the overall approach to a particular subject. For example, the course of Public Law can be structured around the following topics:

• Types of public power • The source of each power • The limits on each power and • The avenues for challenging each purported exercise of power.

If the course has underlying themes and considerations then these themes may inform the manner in which students approach the assessment task given, including problem question responses.

Read the question Read the question slowly and with attention. You pick up most of the nuances of the question when you read it the first time and you should note these as you are reading. Try not to be too critical when you read the question - read for information rather than trying to work out what all the issues are. Do you completely understand the facts? Do any facts appear to be missing or assumed by the question? Do the facts resemble a decided case?

Then read the question again! Pay attention to what it is, specifically, you are asked to do. You may be asked to advise a particular party, or to advise generally. Or you may be asked particular questions. Do not adopt the role of advocate to party A if you have been asked to advise generally and vice versa. If something is given as a fact, you do not need to question its validity - eg if you are told there is a contract, you do not need to consider the rules of contract formation. . If you are told someone was negligent, you can accept that fact as proven.

If you are asked to advise the parties or discuss the issues that arise, remember that you are not being asked to write the court’s judgment. You do not have to decide whether someone was negligent or whether they did in fact cause the damage. Rather, you are advising the parties on certain and uncertain aspects of the law, about relevant principles of law, about how the court would determine issues of law and fact, and about how the principles or statutory provisions might apply to your party’s situation.

Who are the parties? Ascertain the possible permutations of parties - who has a claim against whom? Some of these may be irrelevant if you are only asked to advise one party. Who will be the plaintiff and defendant in your answer?

What are the possible causes of action? Ascertain the law relevant to each claim. A legal remedy will only be available if the plaintiff’s claim can fit a particular ‘cause of action’, such as trespass to land (torts) or promissory estoppel (contracts). At this stage,

brainstorming is better than trying to narrow down the answer - list all causes of action that you think might even vaguely be relevant. Even if it is unlikely that a claim or defence will be successful in the end, marks are often awarded for recognising the possibility of a particular argument. Think how you would feel if you were a client: you might wish to know why a particular cause of action or defence would not be successful, as much as why one would be. For example, contributory negligence cannot generally be raised as a defence to an intentional tort. That does not mean you have to list every possible tort action or defence just to dismiss it: you should concentrate on the arguments that might be raised on the facts. To be comprehensive you need to think of everything, but it is then crucial that you exercise judgement in determining which actions are the strongest (and which issues are likely to be the most contentious) and focus on those.

What are the requirements for each action? Summarise the elements of each cause of action and note the relevant case authorities. The elements of a cause of action are the steps or requirements that need to be satisfied in order to prove that cause of action. For example, in order to prove a claim of negligence, the elements of duty of care, breach of duty, causation and remoteness must be satisfied. If the choice of principle depends on how the facts are interpreted, or the principles are unresolved in the case law, list them all - that is, don’t get ahead of yourself by guessing which principles will or won’t be relevant before you try applying the law to the facts. Are there any defences available, or any special issues relating to remedies?

Are the elements satisfied? Apply the law, element by element, to each set of facts and assess whether each is satisfied (yes, no or maybe). Even if there is an obvious yes or no answer to one element (eg the entry of Zula into the house of Yorrick clearly satisfies the ‘land’ element of trespass to land, as houses are fixtures), include it anyway (but only briefly). If the answer is less obvious, but there are no ambiguous issues, cite the case which supports your application of the law. If the answer to one element is ‘yes’, continue working down the list. If one element of a cause of action is not satisfied, then it will fail and you should move onto the next cause of action. But be careful in reaching this conclusion, particularly where the limits of elements such as duty of care in negligence (torts) or unconscionability (contracts) are notoriously uncertain and well worth arguing about.

If there is a ‘maybe’, an issue arises which will require interpretation of the law and/or the facts. Issues are thrown up where the law is ambiguous or unclear: the facts of the problem are usually chosen to highlight that ambiguity or uncertainty.

It may be appropriate to speculate about facts which are not given or which are unclear as this may change the application of the law and the nature of your advice.

ISSUE: What are the issues? Where it is unclear whether a particular element will be satisfied on the facts, formulate the issue as a question which identifies those facts needed to satisfy the element. Try to express the question at the most detailed level possible. For example, instead of ‘Is Michael trespassing in Janet’s room?’ put ‘Does Janet, as a child in her foster parents’ house, have sufficient possession of her room to support an action of trespass against Michael?’

In identifying the issues, consider the range of possible meanings for the statutory provision or common law principles and how they relate to the possible interpretations of the facts. You may also consider the generic usage or dictionary definitions of particular words in order to set up arguments for and against each meaning of the ambiguous element.

Use common sense with regard to the amount of time/space you spend on the various issues - obviously you will get more credit for how you discuss more difficult or controversial issues. Your knowledge of the course will help you recognise these. Where marks are assigned to each part of a question, use these as a guide for how much emphasis you give to each issue. If a section is only worth 2 marks, even a Nobel-winning account of the issues will not get you more.

This task of issue-spotting is a necessary, but not sufficient, requirement to achieve success in a problem question response. That is, you will need to become adept at spotting the issues within a problem question in order to move onto the next stage of determining and applying the law relevant to the issues. It is this application stage where the most marks will be awarded.

A possible method of usefully setting out these brainstormed issues is through diagrams and mind maps. This may assist some students to visualise how issues and sub-issues fit together, and how alternatives can emerge from different aspects of the issues identified.

RULE: What is the law relevant to the issues? Set out the principles of law that are relevant to the issues you have identified, including the cases from which they are drawn. Again, for your own benefit, write down as many as you think may be relevant without jumping to the conclusion about which principle will be applicable.

You may wish to identify those principles that are settled and those that are uncertain. For example, you could write: ‘It is settled law that …’ or ‘It is well accepted that…’ or you could write: ‘The law relating to…issue…remains unsettled/uncertain’ or ‘There are conflicting authorities as to whether ….issues…’ Professor William Morison, an eminent torts scholar from this law school, used to advise students that it is as wrong to say that a rule is grey if in fact it is black and white as it is to say that it is black and white when it is in fact grey!

APPLICATION: Apply the law to the facts Fact scenarios in problem questions often resemble decided cases, but are deliberately different in key aspects. Consequently it is usually not possible to apply the principles directly to provide a conclusive resolution of issues. Instead, you will need to make your own argument about which precedent, if any, should be followed, and why. You may have to reason by analogy to a case with a similar fact scenario and explain why the same (or a different) conclusion should be reached. Akin to judicial reasoning, your arguments will be based on an analysis of precedent, and/or an appeal to policy. (Looking at the way judges write their decisions will be helpful in learning this skill.) Ask yourself, is this fact situation more like the one in case X or case Y? How do they differ? Do they differ in relevant or irrelevant ways? What is the important underlying principle which should be applied (or not)? Don’t forget the basic rules of precedent, such as being aware of which jurisdiction the cases come from, or whether they are Supreme/ High Court decisions.

Do not launch into an undirected discussion of principles, cases, social policy, etc; rather, refer only to these sources to set the scene before discussion of an issue or in the process of assessing the various arguments.

CONCLUSION: What is your conclusion? Although it is not always necessary or possible to give a confident answer on the legal position of parties, you should express an opinion as to the likely result if the matter was before a court, or, if you are advising a client, her strongest argument for success, or, if appropriate, the weakest parts of her case. Because you are not being asked to be the judge, you cannot decide issues of fact which depend on a judgment about the evidence, eg as to whether the defendant behaved reasonably. Remember not to be too certain about your conclusion - express it in terms of likelihood or probability. It may be appropriate to refer to academic commentary and policy discussions in supporting your answer.

If there is more than one issue for a particular cause of action, state a conclusion for the cause of action as a whole.

How do I write the answer to a problem question? Problem question responses are marked in reference to the assessment grading guidelines. There are three factors to consider when answering problem questions.

• Structure and organisation • Writing style, tone and purpose • Use of authority: substantiation, quotations and citations

Structure and organisation Headings and sub-headings

Organisation is important – use headings and sub-headings for different parties, causes of action and issues. This will save a lot of words of explanation and assist the reader to follow your arguments. For example:

• ZIG v ALGERNON

• Trespass to Land

• Possession: Does Zig’s temporary presence on the land as a camper amount to possession?

Signposting As with essay writing, use ‘signposts’ in your language to help the reader – eg ‘The central issue is…’; ‘The only way that the contract will be enforceable is if….’

Introduction Give a brief introduction to forecast the issues - that is, to indicate that the main focus of the problem will be on assault/restitution, with uncertainty as to how particular facts may be interpreted etc. (Note: you may not always need an introduction, or a long introduction, depending on the structure of the question asked, and on the word limit you have been given. There is no point including detail in an introduction which will be repeated in the text. A short sentence outlining the issues to be raised may be enough. Or you may wish to go directly to the first issue.)

Elements For each cause of action that you address, state briefly the elements of the cause of action, citing relevant case or statute authority.

Briefly state which elements are clearly satisfied or not satisfied. This indicates that these points need no further discussion.

Indicate that the remaining elements give rise to issues and briefly identify the issues. Then, under separate headings, discuss each issue in turn:

Issue: Start with a statement of the issues in terms of law and the facts at issue

Rule: State the range of possible meanings or interpretations of any ambiguous statutory provision or common law principle. State arguments for and against each meaning, including a discussion of the relevant authorities.

Application: Evaluate these arguments as they apply to the facts.

Conclusions State an opinion or conclusion for each issue and then one for each cause of action overall, if required, in the form of advice to the party.

Writing style, tone and purpose Students should pay particular attention to the advice offered earlier in the plain English section of this resource. Apart from that advice, which is relevant for all forms of legal writing (problem questions, essays, case notes etc), this section provides guidance in relation to writing in the third person; the level of detail/explanation required; and discussing facts.

Writing in the third person If asked to give advice, write in third person - eg ‘B will have an action for trespass/breach of contract if…’ or ‘It is submitted that…’. Students should aim to write formally but clearly. Starting a sentence with ‘I think’ is too informal for a problem question response and will not accord with the rest of your response written in the third person.

Level of detail/explanation As a guide to how much detail or explanation to include, assume that the reader is a lawyer, but one without detailed knowledge of the area of law under consideration.

Discussing facts In discussing the facts, it is sufficient to refer to the facts as stated in the question. Do not waste words simply copying the facts! Do not invent additional facts! (This is distinct from considering possible facts and their different outcomes where there are insufficient facts given in the question to enable you to come to a conclusion. It is not helpful to say ‘it depends on the facts’, but if there are significant ambiguities (and again, this is an exercise of judgement) identify which facts would matter and why).

Use of authority: substantiation, quotations and citations In written problem assignments, you should give references for your sources in accordance with the Australian Guide to Legal Citation (see Moodle). In a handwritten exam, you should simply underline case names and other sources for clarity, but full references are not required.

When do I use a different approach? Your approach will need to change for different types of assessment (sit-down exam or take home assignment). If the problem question is set in examination conditions, you will only have very limited time to analyse and answer the question. The general survey of the law on which your answer will be based will be what you have learnt in classes - lectures and tutorials - and in your private study, reading and revision. Examinations aim to assess you on what was taught and set as reading for the course, so in preparing for an exam you need to pay close attention to the syllabus for that course, plus what was emphasised by the lecturer in classes. The problem question will require you to demonstrate that you understand the structure of the law and fundamental issues in a particular legal field, and will probably also include a number of difficult issues where the law is complex or unsettled. You should spend at least the reading time working on the structure of your answer before putting pen to paper and use headings generously to indicate to the examiner which parties you are referring to, and what aspects of their claim or defence. See Appendix A for a Sample Contract Law Problem Question.

Case Notes What is a case note? A case note is a summary and analysis of a court’s judgment.

Why are case notes given as assessment tasks? Preparing a case note is an exercise in identifying the law made by a court judgment. Casenotes are set as assessment tasks to develop your skills in reading actively and analysing a judgment. Your skills in accuracy, succinctness, referencing and ability to summarise in a useful way are important.

For the most part, however, case notes should be viewed as an analytical exercise. They provide the framework by which you will be able to understand the law, and as such, there is no single standard form for writing a case note. Instead, the guidance in this section briefly explores each basic element of a case note.

Case notes, where given as assessment tasks, are marked in reference to the assessment grading guidelines.

How do I write a case note? Generally speaking, a case note requires you to identify the information that fits into each category eg the facts of a case, ratio decidendi etc. The process is iterative in the way that each category relates to other categories. This section breaks down some of the main categories of a case note. It draws primarily from the textbook Laying Down the Law (LexisNexis, 8th ed, 2012) and Connecting with law (Oxford University Press, 2nd ed, 2012).

Citation, including name of case This enables the reader to identify the case. It is found at the beginning of the judgment. If the case name is long or iconic, you may consider including the name by which the case is known. The citation of the authorised law report is preferred.

Example: Mabo v Queensland (No 2) (1992) 175 CLR 1 (‘Mabo’).

Court and judges You should include the name of the court in which the case was heard, and the judge(s) that heard the case.

Brief Statement of Material Facts Include only those facts that are critical to the case. To understand which facts are critical to the case, it is often necessary to read the entire judgment, and to figure out which facts explain why the parties are in court or are key to the determination of a legal issue. These are the facts upon which the decision is based.

Procedural History This will provide an overview of what courts the case has already been through. It is a record of the various courts in which the case has been heard before. Clearly, this section will only be important if the case is an appeal, since a case that is being heard for the first time is ‘at first instance’.

Issues to be decided These are the legal issues to be decided in the case. For example, in a case of negligence, the legal issues may be:

• Was a duty of care owed? • Did the actions fall below the standard of reasonable care required?

According to the case in question, the issues should be stated in sufficient detail to guide the reader as to the crux of the case and why it is of importance. In first instance judgments, the issues to be decided may be a mixture of both fact and law. However, at appeal, the questions are usually ones of law.

Reasoning/Decision This section will summarise the court’s reasoning in answering the identified issues. This is why it is important to separate the issues out - although judges in their judgments are not always so kind, separating the analysis according to each issue can assist you in getting your head around complex determinations. Not all judgments are unanimous decisions - you should note which judge said what, including who is in the majority and who is in dissent.

The decision will apply the reasoning to the facts. An example of a decision would be ‘Therefore, X was negligent because…’.

Usually, the law on a certain topic will be settled, therefore this section will focus on how the law is applied to the facts of the case. However, there are times when the legal principles themselves may be in dispute. In such a case, this section could be use to summarise the court’s exposition of the competing arguments and principles to arrive at the principle of law applied in the current case.

Ratio This is the resolution to the main legal issue in the case. Therefore, the ratio will be found in the reasoning/decision as stated above. However, it may be useful to restate the ratio in one sentence.

Obiter Courts often do not confine their discussion to the legal issues at hand, but may make some comments ‘in passing’ that raise interesting points of discussion. These can also be important to note as, although they do not have binding precedent, obiter are at times relied upon where the law is unclear in a certain area and obiter provides some clarification.

Orders This states the legal consequences of the decision – for example ‘the appeal was dismissed and the appellant was ordered to pay the respondent’s costs’.

Appendix A

Sample - Contract Law problem question

In this section there are four sample answers to a problem question in contract law to illustrate how answers can differ across grades. The sample answers should be read in conjunction with the assessment grading guidelines.

A good way to use this resource is to read through the following problem question. After you have read it, consider how you might answer it in point form and in terms of structure. You should then read through the answers to the questions to give you an idea of what a pass, credit, distinction and high distinction answer would look like. You should not think of these answers as being model answers. You should also not consider any of these answers as necessarily right, they all have weaknesses and you should be guided by your own reading of the cases and text and your own analysis. The answers given were written under exam conditions; a higher quality and properly referenced answer would be expected in a take home assessment task.

The Problem scenario and question

Following lengthy negotiations for the acquisition of cable television rights to the 2012 Olympics, Alice and Bruce sign the following document:

Heads of Agreement - Cable Television Rights

This document records the completion of negotiations of the Heads of an Agreement by virtue of which Alice and Bruce agree to execute a formal contract which gives effect to each of the terms set out below.

1) Alice agrees to acquire from Bruce, and Bruce agrees to grant, the exclusive right to exploit the licence that Bruce holds to televise the 2012 Olympics.

2) Alice agrees to televise all events at the 2012 Olympics and to provide facilities sufficient to enable appropriate overseas telecasts.

3) Alice agrees to pay a sum of $3 million on the signing of the formal contract. 4) Alice agrees to pay such sum as Bruce considers to be sufficient in respect of the revenue obtained from:

a) approved sponsors; and b) overseas telecasters.

5) Such other terms as may be agreed between the parties, acting in good faith and in a spirit of co-operation appropriate to the event to which the Agreement relates. All such terms to be: a) necessary for the efficacy of the venture; and b) of a kind normally found in contracts of this type.

Alice decides that the price is too high and refuses to comment on a draft of the formal contract prepared by Bruce's solicitors. The draft in fact contains a large number of additional terms, including an obligation that Alice spend no less than $2 million in promoting the telecast and obtaining sponsors.

Advise Bruce whether he has any contractual rights against Alice.

Sample answers Pass (50-64%) For B to have contractual rights against A it is necessary to prove a contract exists between A and B. For there to be a contract it is necessary that the parties have reached an agreement. This is done by using the tools of offer and acceptance. An offer is a statement evidencing an intention to contract on certain terms without further negotiation and is distinguishable from an invitation to treat. To determine whether there is an offer you apply an objective test from the position of a reasonable person in the position of the party hearing the statement. An acceptance on the offer must be unequivocal and be communicated to the offeror unless communication is waived by the offeror. Acceptance can only be made by the person to whom the offer is made and an offer will lapse if not accepted within a reasonable time. In addition to there being an agreement there must be valuable consideration and an intention to contract. We can dispense with the latter requirement because this is a commercial contract and there is a presumption that the parties intended to contract.

As noted above an offer is a statement evidencing an intention to contract on certain terms without further negotiation. Applying this test it is possible to conclude that A has made an offer, being an offer to acquire the rights to B’s licence in return for payment. A reasonable person in B’s position would conclude that an offer has been made because the statements made by A are clear and A has executed the document.

There has also been an acceptance as B has signed the Heads of Agreement which shows that he has accepted A’s offer by accepting all the terms put up by A without changing any of them. The mirror image rule is therefore made out.

For B to now enforce the contract it is necessary for consideration to move from B. B has provided consideration in agreeing to grant the licence and agreeing to determine the price under clause 4.

Even if there is an offer and acceptance and valuable consideration a contract will not be enforced if it is uncertain or incomplete. For example, an agreement to enter into a lease without agreement as to the term of the lease or the rent to be paid is uncertain, see Whitlock v Brew.

In this case there are two uncertain aspects. First the final price is not certain as it is left to the discretion of B to determine. A reasonable person in the position of A would be unlikely to finally commit to such a provision as it leaves A in the position of not knowing how much she will have to pay. In addition, the court could not fix this uncertainty by implying that a reasonable price be paid as that is not what the parties agreed. Second, although there is a good faith obligation the law requires there to be a mechanism by which gaps in the contract can be filled as well as negotiations to be well advanced, see Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd. Here the negotiations have barely begun and the mechanism is too uncertain to be given effect to.

It is therefore concluded that there is no contract between A and B.

Credit (65-74%) For B to have contractual rights against A it is necessary to prove there is a contract. For there to be a contract it is necessary for the parties to have reached an agreement. This can be proven by using the tools of offer and acceptance or by conduct. In this case the parties express the document to represent the completion of negotiations for the Heads of Agreement. From this it is reasonable to infer that an agreement has been reached with the offer and acceptance being the promises made in the document that has been signed.

Although the parties may have reached an agreement this will not be upheld by a court unless it can be said to be certain and complete. Whether or not it is certain and complete is determined objectively from the position of the parties. In this case the ultimate purpose of the transaction is the televised coverage of a sporting event

which will require detailed drafting. That detailed drafting is not in the heads of agreement and the issue is whether the heads of agreement can stand on its own.

The agreement is expressed to made subject to the execution of a formal contract. The meaning of such a provision was dealt with by the High Court in Masters v Cameron. The court held that such a clause can have one of three meanings, first, that the parties intend to be immediately bound, second that the parties intend to be immediately bound but performance is suspended until execution and third, the parties do not intend to be bound at all until execution. There is a presumption that the latter applies. It is suggested that in this case the agreement falls into this third category as it is expressed in terms that the formal contract will be the contract that gives effect to clauses 1-5. The reference to the word ‘terms’ should not be taken to suggest that parties intend the heads of agreement to contain statements to truth of which is guaranteed as that is giving to the term a technical legal meaning that the parties would not have envisaged.

In addition to the above it can be seen that not even the price has been finalised; the final price is left up to the discretion of B. This renders the agreement too uncertain. Moreover, the agreement cannot be saved by severing this term as the price for the right is crucial to the transaction. Severance would result in A being prima facie liable to only pay a 3 million dollar upfront payment for the rights.

Clause 5 also gives rise to uncertainty. It reads like an agreement to agree which cannot be given effect to as it is illusory. The placing of a duty of good faith, which is a developing doctrine in Australian contract law, cannot save an agreement to agree as it does not provide a criterion to make the parties agree. Even if the provision was construed as being no more than an agreement to negotiate in good faith towards a final contract it would not be upheld as negotiations for a final contract are not in evidence and the mechanism to resolve a break down in negotiations is uncertain in its operation, see Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd.

Distinction (75-84%) Bruce’s case is dependent on there being a contract between A and B and for A to have breached that contract. If there is no contract the second issue of breach does not arise. A contract requires a certain and complete agreement to have been reached. Usually the determination of whether or not an agreement has been reached starts off with investigating whether or not an offer has been made. An offer requires evidence that a party is willing to enter into a contract on certain defined terms without further negotiation. It can be readily distilled from this description that inherent in the notion of offer is the requirement of an intention to contract. Often in commercial contracts such an intention is presumed, however the introduction of clause that makes the agreement subject to the execution of a formal contract makes such intention a matter of proof unless one draws a distinction between a general intention to contract and an intention to be immediately bound.

The meaning to be given to the words ‘subject to contract’ or equivalent expressions depends on the construction of the contract, that is, the presumed intention of the parties, see Masters v Cameron. In this case the Heads of Agreement sets out the terms, which are to be given effect to in a formal executed agreement. This suggests that the terms are only to take contractual effect upon the execution of a formal contract. However, it may also suggest that it is only the performance of those terms that are suspended and that the executed heads of agreement is to have some immediate force. Courts have also recently accepted the possibility of a subject to provision being intended to give the preliminary agreement immediate effect but to be later replaced by a more formal agreement. This may be no more than an acceptance that commercial people operate by reference to these preliminary agreements and some effect must be given to them if that is the intention of the parties. It is nevertheless suggested that in this instance the requirement of an executed formal agreement shows an intention not to be bound. When this clause is read in the context of the contract as a whole, especially clause 5 which shows that further terms are to be agreed, then full force cannot be given to

the word ‘contract’ in the phrase ‘agree to execute a formal contract’ and what the parties have really agreed is no more than an agreement to agree which is illusory and unenforceable, see Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd.

In addition to the above, clauses 4 and 5 render the agreement uncertain and incomplete. Clause 4 leaves final price at the discretion of B. Although a contract can be formed despite a party accepting an onerous burden, as A might be accepting here, the burden must still be certain. There are no mechanics here for ascertaining the price and a court cannot imply a term for the payment of a reasonable price as that would be at odds with the intention of the parties; in addition, it may be that a reasonable price is not capable of being calculated given the rare quality of the transaction.

Finally clause 5 is no more than an agreement to agree which cannot be upheld unless there are some acts of part performance so as to give meaning to provisions that would otherwise be uncertain. Here that uncertainty is not overcome by subclauses (a) and (b). Terms implied by reference to business efficacy are limited to simple terms and would not complete this complex contract. Moreover, subclause (b) refers to a standard that may not exist and therefore cannot help in providing meaning to the provision. Although this depends on proof it is difficult to see how a set of standard terms would exist for such a transaction. It follows that the reference to good faith and co-operation cannot save the bargain as it has been held that an obligation of good faith cannot overcome uncertainty, see Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd.

High Distinction (85%+) Whether or not B will have a cause of action for damages for breach of contract depends on whether the Heads of Agreement is itself an enforceable contract. Since A and B have executed the Heads of Agreement, they themselves may have come to an agreement, and execution excuses the need to go through an offer and acceptance analysis to find an agreement. Moreover, the language of the document reflects this conclusion; it records the completion of negotiations for the ‘Heads of Agreement’. Nevertheless, as a matter of law, the parties must have reached a certain and complete agreement R. Under the objective theory of contract; it cannot be concluded that the parties have reached an agreement if it is impossible to ascertain the meaning and legal effect of the terms agreed. Moreover, despite the execution of a document, there will be no enforceable agreement if the contents of that document evidence a positive intention not to contract. In this case, the determining factor will be the efficacy of the good faith provision.

To reach and understand that point it is necessary to investigate some of the earlier provisions of the agreement. Clauses 1-3 of the agreement set out the basic obligations of the parties. The transaction involves the granting of rights to televise the Olympic Games. Such a transaction would ultimately require the settling of complex provisions under a formal contract. The parties have at most concluded an important part of their negotiations from which they intimate they will not go back on: they have agreed on a basic pricing structure and have agreed to negotiate exclusively with each other to finalise the deal, see Seppelt & Sons Ltd v Commissioner for Main Roads. Although that does not evidence a concluded contract to televise the games, it may be enough for B at this point if there is an effective agreement to continue to negotiate. That is, the Heads of Agreement impose no present duty unless it requires a commitment to negotiation, as it merely expresses an agreed expectation. 
Clause 4 raises a problem for B as it shows that the ultimate price A must pay is at the discretion of B, with no obvious controls on that discretion. From the aspect of valuable consideration this is the reverse of the situation in Placer Development Ltd v Commonwealth. A has promised to pay but the amount is at the discretion of B, not A. Arguably, it is not a case of A promising to do nothing nor a case of B promising to do nothing, the ultimate consideration lying in the mutual promises contained in clause 1. Nonetheless, there is a strong argument that A’s consideration consists not only in the promises contained in clause 1 but also in

clauses 2,3 and 4, and that clause 4 provides illusory consideration even though it is B who must determine the amount, and not A, because there is no mechanism for working out the figure; it is equivalent to A promising nothing. If these clauses do reflect the intended consideration then it would not be possible to sever clause 4 from the more certain promises in clauses 1,2 and 3 as that does not represent the intention of the parties.

Moreover, the granting this discretion to B may evidence a lack of intention to contract with B. However, that lack of intention may only relate to the final transaction and does not negate the possibility of an intention to contract on the terms of the Heads of Agreement. 
The entire agreement is expressed to be subject to the execution of a ‘formal contract which gives effect to each of the terms’. The effect of such provisions depends on construction, that is, the reasonable intention of the parties, see Masters v Cameron. Such provisions may evidence an intention to immediately contract, in some cases with performance being suspended until such execution, or they may evidence a lack of an intention to immediately contract. The provision states that the formal contract is for the purposes of giving effect to the terms set out in the Heads of Agreement. So it is arguable that the parties intend that the clauses are to have no effect until such a document is executed or at least performance is suspended until such time. Despite this, the subject to provision may also be simply referring to the more detailed contract, it being a document that will include the obligations agreed under the Heads of Agreement. Moreover, concluding that the subject to provision implies a lack of intention to contract until execution appears at odds with clause 5, which at least impliedly requires the further negotiations of the parties which must take place prior to the execution of the formal contract. It is at least arguable that the ‘subject to’ provision does not inhibit the Heads of Agreement taking immediate effect.

Despite the above, clause 5 does introduce the principal difficulty for B. First, it is drafted in terms of an agreement to agree. Generally, such agreements are considered illusory, see May & Butcher Ltd v R, Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd. The rare instances in which they have been upheld are where the parties have evidenced a commitment to the transaction by partly performing and, in particular, by performing those obligations that are now being claimed by one party to render the contract void for uncertainty, see Foley v Classique Coaches. Perhaps such cases are now best seen are examples of estoppel, but in any case there is no evidence of reliance by either party in this case.

There is then an issue as to whether an express obligation of good faith and co- operation can save what would otherwise be an agreement to agree. It is submitted that it cannot; one cannot agree to negotiate to agree. If I am wrong on that point there is still an issue as to whether the good faith provision can save the uncertainties raised by the other clauses. At present in New South Wales a good faith negotiation provision can only be used to uphold the bargain if the negotiations for the agreement are well advanced and if there is a mechanism for resolving disputes should negotiations break down, see Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd. The Heads of Agreement expresses the ultimate intent of the parties but lacks any detail in what would be a complex transaction. It is irrelevant that negotiations may in fact be well advanced; this must be reflected in the terms of the Heads of Agreement as that is the transaction that B wants upheld as a contract.

The mechanism provided to resolve negotiation breakdowns will not save the situation. Terms ‘necessary’ for the venture only captures those terms that are obvious. This mechanism will not allow for the implication of the complex terms that are necessary for this transaction. Reference to an external standard only helps if it exists; the Olympics are a rare event and the parties vary each time and technology varies between games. It is doubtful that one could produce a set of standard terms for such a contract, see Whitlock v Brew; nor that there is a trade in such contracts, see Three Rivers Trading Co Ltd v Gwinear & District Farmers Ltd.

Finally, B might argue that clause 5 could be upheld as a contract in its own right on the basis that it constitutes an agreement to negotiate. However, the language itself does not reflect such an agreement so as to sever it,

and at present such clauses have only been considered are being relevant to the efficacy of the entire agreement on the principles discussed above. It follows that B has no contractual rights against A.

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