Legally Ranting

Unconscionable Dealing, or Undue Influence?

Posted in Equity, Law School by legalrants on April 14, 2011

The equitable doctrines of Undue Influence and Unconscionable Dealing have often been confused and inappropriately administered. Even within the doctrine of Undue Influence itself, it is not entirely clear as to which is the correct approach.

Let me cite an example. When addressing an action in Undue Influence, does it matter whether the defendant acted with some impropriety (exploitation) towards the plaintiff? According to some UK cases (see National Westminster Bank v Morgan; RBS v Etridge), the answer is yes. In Australia, the approach focuses on the quality of the plaintiff’s consent. This was clearly stated in the case of CBA v Amadio, albeit in an obiter.

Now the problem with the ‘exploitation’ approach is that it gets easily confused with the doctrine of Unconscionable Dealing. This latter doctrine focuses entirely on the defendant acting unconscionably in taking advantage of the plaintiff’s special disability.  Certainly, there are strong overlaps between the notion of ‘exploitation’ and ‘unconscionability’. The blurring of the two doctrines is further compounded if the scope of the ‘special disability’ in Unconscionable Dealing is not set out correctly.

In the High Court of Australia case of Bridgewater v Leahy, the special disability was an affection and fondness of the defendant. Now, when you consider that in cases of Undue Influence, a presumption that there was undue influence can be made out if there is a relationship of trust and confidence between the plaintiff and the defendant, you can see the problems arising — another case of strong overlap, this time between ‘trust and confidence’ and ‘affection and fondness’.

Taken to the extreme, it can be said that there is no discernable difference between the doctrines of Unconscionable Dealing and Undue Influence. In retrospect, this may be to the advantage of the plaintiff, for he may be able to argue two different causes of action on the same set of facts. Nevertheless, the blurring of the two doctrines does no favours to the jurisprudence of Equity.

The Fusion Fallacy — Is it really necessary to separate Equity from the Common Law?

Posted in Contract, Equity, Law School by legalrants on March 5, 2011

A hilarious incident occurred during the Equity lecture two days ago. The lecturer was attempting to explain what forms of equitable relief  are available. It went like this:

Lecturer: A lady signed over her property to her son, in the understanding that she would be able to live in that property for life. She went away for holiday and her rascal son sold the property, and she came back finding that the property was scheduled to be demolished. What form of equitable remedy would she be seeking?

A loud SYMPHONIC TUNE went off, presumable from a mobile.

Lecturer: Not THAT kind of relief, I hope!

In short, the answer to this question would likely to be an injunction. Before I started the Equity unit, I didn’t give two hoots about the available remedies to a civil breach — say a breach of contract. I mean, to me, it was pretty clear cut — injunction? specific performance? damages? rescission? These mixture of equitable and common law remedies were all mish-mashed and bundled in my head, ready to be spewed out according to the context of the case.

Lo and behold — the puritanical law academic would have frowned upon my insolence and ignorance. It’s a FUSION FALLACY, they would say. In my defence, I didn’t even know they were SEPARATE, let alone try to “fuse” them.

Why is it really important to make a clear distinction between equitable remedies and common law remedies anyway? I mean, one would simply dish out the most appropriate remedy right? Who cares if it’s equitable or common law-based? However, in a much celebrated dictum, Professor Ashburner had compared equity and the law to two streams of jurisdiction, though running side by side in the same channel, they do not mingle their waters.

In my opinion, it is still important at the moment to ensure that equitable doctrines are not mixed up with common law principles. For example, exemplary damages (a common law remedy) should not be awarded in a case of a breach of fiduciary duty (an equitable duty) — see the case of Harris v Digital Pulse.

The doctrine of Equity was derived as a supplement, or a “gloss”, to the common law. It steps in when remedies under the law is judged to be inadequate — therefore, a court looks to Equity to award remedies as it sees just. The relationship is not reciprocal. If a dispute requires Equitable doctrines to resolve, it means that the common law was inadequate in some way; if that is the case, why is there a need to bring in common law remedies?

A more appropriate approach, though possibly entailing no change in substance, is to develop the common law incorporating duties that were previously under equitable doctrines. For example, in the case of Harris, a court can hold that a fiduciary duty has a legal component to it, that would attract common law remedies if that duty was breached.

It is still important to keep the “waters” from “mingling” — if common law remedies were available for all breaches of equitable duties, we could see the state of law  decline into a mish-mash of confusion. For example, exemplary damages may be awarded in cases of breach of contract, simply because the judge feels that it is appropriate to do so (when previously, contract law would not administer such a relief).

Boy, isn’t that confusing?

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Renewed Vigour

Posted in Law School by legalrants on December 11, 2010

This semester’s results were just released. Thank goodness, I fared significantly better than last semester — I guess in some way, this is really important in renewing my vigour for the remaining 4 semesters. Reflecting back on this semester’s efforts, I realised that I had totally revamped my studying methods, though there is probably more to improve on. Here are some tips to any law school newbies on how you might want to approach studying law:

1) Daily revision — I cannot overstate the importance of this. It is vitally imperative that you refresh your memory on what was taught in the day’s lessons as soon as you get home, or whenever you can. Reflect on what the lecturer(s) had emphasised, the important cases and to extract the main legal principle from each of those cases.

2) Building upon the previous point — I find that sometimes I get too bogged down on the minute details of a case and miss the larger picture. It is infinitely more important to see the “big picture” than to endeavour to arm yourself with all the little nitty gritty facts.

3) Of course, once you are able to see the “big picture”, go on to know (as opposed to memorise) the facts of the case. This is particularly useful if you need to draw analogies to issues in the exams. Sometimes, by cogently and persuasively comparing (or contrasting) the facts of the exam problem to a known case, you save yourself alot of uncertainty. But nevertheless, beware of falling into the trap of conveniently classifying the issues into known categories of cases — examiners often want to see that you are able to be innovative and flexible as well.

4) Don’t read ALL the cases — of course if you can, that would be fabulous. But often, nobody has the time to do that. With cases stretching into hundreds of pages, and each judge giving their own individual judgement, it is often difficult to extract a clear ratio from the case — if you have time, you can dissect each judge’s judgement, if not, just know the “big picture” and extract the main legal principle from the majority judgement.

5) Do not ignore dissenting judgements and obiter dictas. Knowing what the dissenting judges said and other obiters are often very useful in “analysis” type questions because they provide an alternative view which are often motivated by some very practical or persuasive legal concerns. Examiners would be impressed if you can state that Justice XXX disagreed with the majority for the following reasons…..or observe that a seemingly harmless obiter in a majority judgement may have (or indeed had) riveting effects in future cases.

6) Make associations between cases and legal principles. Often, we are thrown huge chunks of facts, theory and legal principles that it is very hard to make sense of it all, or to understand how everything fits in (this is part of the “big picture” concept). I find that the most difficult, or at least tedious aspect of revision is to find a connections and associations between all the cases, principles and facts that were taught to us. This also requires that you know the cases very well. Therefore, it may very well be that you are able to make these connections ONLY towards the end of the course. One subject that immediately comes to mind is Contracts (I hear a few sighs…)

7) Know your strengths and weaknesses and try to find an optimal balance. For example, I know that I often have trouble concentrating in class — sometimes, I get distracted by external things, sometimes, I get so hung up on a legal principle that I lose track of what is going on after that. I decided to bring a recorder into class to record all my lectures and seminars so that I can review them after class. This was working well for a while, then I realised that I was spending too much time attending the lectures/seminars and then reviewing them once again. I finally made an executive decision to bring my laptop to class and take down notes while still recording the lesson. In this way, I jot down the important points in class, and only rely on the recording to review the important material, or the areas which I am unclear about. Along the way, I found that actively jotting down notes in class trained my on-the-spot critical thinking ability and I found that I was less confused and more immersed in the lesson. Bottom line is — find a way that works well for you, it may involve trying different methods, but you’ll get there eventually.

8 ) This is related to exams and assignments — write as much substance as you can without looking like you are talking rubbish. Substance is what gains you marks. It is not enough to just give ONE opinion. Try to offer different perspectives and views and alternative arguements. This makes examiners very happy.

8) Lastly, always come prepared to class. While this may save you some embarrasement when being called upon, it trains your personal discipline and more importantly, enables you to absorb much better and faster in the class. However, I’m often guilty of not preparing for class for various reasons, usually laziness — this is what I endeavour to strive for in upcoming semesters.

This is a snapshot of my reflections over the past semester. Law school certainly has a steep learning curve, I just wished I had developed more of these habits in my undergrad years.

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The irrationality of Xenophobia

Posted in Boat People, Human Rights, Law School by legalrants on August 27, 2010

So far, this semester of law school has been really interesting and wildly different from last semester. It’s true when people say how much you get is how much you put in. It’s certainly the case with law school. At any given time, there is a plethora of activities going on, from basic mooting to UN debates, and negotiation/arbitration competitions to climate change advocacy discussions. Sometimes, there’s so much going on, that you are tempted to take a backseat just so that you can suck it all in and ponder about what to actually take part in!

Anyway, this semester, I took a very last minute decision to elect a unit in International Humanitarian Law, or IHL, as it is so affectionately known as. So far, it has been a thoroughly engaging ride and I find myself always yearning for more information.  For some reason or another, I find myself silently campaigning against the rights of the minority, the weak, the oppressed and the disadvantaged.

This post has nothing to do with International Law or IHL, but I just felt the need to rant about xenophobia, or the distasteful connotations it purports. In Australia, the most apparent form of xenophobia is that against recent immigrants, and specifically towards the ‘boat people’.

Personally, I find the term ‘boat people’ derogatory. It conjures up images of hungry, poor and destitute refugees arriving in a cramped and crowded little boat on Australian shores (or whatever off-shore processing centre that the Federal government operates). Frankly, the most frightening aspect of this depiction is that it may actually be true. Whatever it is, such depictions weakens the public’s opinion that these refugees should be entitled to some form of relief — be it asylum visas or otherwise.

I’m not advocating lofty ideals of Australia opening its arms in accepting every single refugee that comes onto its shores. But I feel that, Australia, as a citizen of First World Nations, should not refrain from doing its part in alleviating the plight of those suffering under harsh regimes and civil wars. I applaud the Australian Labour Party (ALP) for its efforts, though it certainly could more. For that matter, I would like to add that the WORST POSSIBLE MISTAKE Australia can make is to appoint Tony Abbot and his Coalition to govern Australia. Tony Abbot’s policy of unequivocally turning boat people propogates a dangerous message to the country and the world as a whole. For this, and other reasons which are out of the scope of this blog entry, I do not consider him fit to be a Prime Minister.

Strangely, I can see why xenophobia against migrants exists and is potentially thorny issue with minority of white Australians. Here in Perth, there is a significant percentage of Asians living here (like myself), though not all recent migrants. Perhaps, the white Australians feel like human beings of Asian descent offend certain sensibilities of the white culture, but most likely, they simply fear that their (white Australian’s) livelihoods are being threatened. No doubt they are legitimate concerns.

However, what I find strange and irrational is that, these xenophobics do not consider the reality that they themselves were migrants from the past. Mind you, Australia as an independent nation only existed as of 1901, though it had been subject to British colonisation for years prior. More significantly, the native Aboriginals who are widely regarded as occupying the lowest level in the contemporary Australian society, were custodians of the land for thousand of years before the arrival of the first white person.  So my question is: where does the basis of xenophobia really come from?

Recently I chanced upon an Australian online forum that advocated the Australian identity. Curious as I was, I peered into it and was categorically disgusted. The administrators of the forum openly declared that the forum was only for “promoting the interests of white Australians”. Terms such as “asiaganisation” were derogatorily used as well as open suggestions to make boat people as target practice.  The forum advocated support for the Australia Protectionist Party, which is seeking to be registered as a political party. One of their goals is to stop net migration and only “source” for migrants from “traditional sources” like Britain and other European countries.

Perhaps, the true basis of xenophobia is the selfish fear of the effects of progress and open-mindedness. Australians, like all other developed countries, crave the benefits of global connectivity and reap the benefits of globalisation. I’m sure xenophobics are no exception. Yet, they are contended with shutting their doors and distributing the spoils among themselves exclusively. Australia’s economy is hugely dependent on resource exports to China, yet these xenophobics unilaterally urge “buy Australian”.

Perhaps it is just the “red-necks” of Australia that are promulgating these concepts. In law school, I’ve yet to meet a white Australian with outwardly self-containing or racists and discriminatory tendencies. Indeed, many share a strong sense of justice towards the weak, poor, oppressed and disadvantaged. I’m glad that THESE are the people who would lead the country into the future.

The Myth About Open-Book Exams

Posted in Law School by legalrants on July 3, 2010

Having gone through the first semester of law school, I’m not sure if I prefer open-book exams or closed book exams. Sure, open-book exams allow you to bring in any materials you can possibly conjure up: notes, “cheat sheets”, textbooks, your favorite magazines, photos of your dog….you get my drift. Unfortunately, adopting such a mentality is a sure recipe for disaster in the exam.

As my Torts tutor once said, “in an exam, your biggest challenges are nerves… and time” — Oh trust me, these combine together to form a lethal cocktail of palm-sweating, bowel-squeezing, gut-wrenching anxiety.

Let’s face it, real estate is already at a premium in an exam hall. When you have 400 students taking the same paper in a hall, how much space can they really afford to give you for your desktop decorations? I’ve seen students bring in huge water bottles (as if they are really gonna need it or have time to even drink it), snacks, 19th century leather-bound textbooks, notes, seniors’ notes, yesteryear seniors’ notes, comprehensive notes, detailed notes……to put on a table smaller than the size of your laptop computer. This is not to mention that you actually have to find some space to position the exam booklet so as to be able to answer the exam itself.

Ok, my point is really that there is limited space on the exam table. So most students wind up putting their “mini libaries” on the floor below the table, immediately diminishing the usefulness of those materials expotentially.

The thought of an exam being open-book usually has a somewhat calming effect on the most panicky of students who comfort themselves that by bringing in all the materials they can possibly muster, they would be able to find an answer to ANY problem in the exam. Of course, to some extent, that is true….. if you are given 2 days to finish an exam that would otherwise be over in 2 hours.

Like I said above, this mentality is a recipe for disaster simply because there isn’t enough time in the exam to go digging through your personal legal encyclopedia to search for the ratio of an obscure case that is probably only worth 2 marks. This is made worse when you have MULTIPLE sources from which you can find that information because you would want to triple confirm the information you gotten from the first source by comparing that to other sources. Well, it’s not so bad if you actually understand what you are reading, but unfortunately, some or many students go into an open-book exam not having really read and understood their notes or materials. The deadly combination of nerves, pressure, not knowing your stuff usually results in students lifting the information from the material wholly verbatim — of course, you know how that would end up.

From personal experience, it is much easier to have just two sets of notes — one acting as a general outline to all the topics/subjects and supported by a one-liner description of the relevant cases. The second set of notes act as a more detailed, albeit summarized version of the information in the textbook and/or lectures. Oh, and forget about the textbooks….bring it in, but chuck it on the floor and forget about it. Only refer to it in the most desperate of situations. Even so, I’m sure the answer can be found somewhere in your notes.

Lastly, read your notes a thousand times and make sure you know EVERYTHING in those notes backwards — memorize it if need be (sounds counter-intuitive for an open-book exam, I know). I’ve found that knowing your stuff well is more important than the most detailed, comprehensive and exhaustive set of materials that you can bring into an exam. An open-book exam is not the time to do research, but a time to demonstrate the knowledge gained from the  research and preparation that you have done throughout the semester.

Hopefully, this would be helpful to anyone embarking on exams anytime soon!

Really Should Be Studying Now…but…

Posted in Human Rights, Law School by legalrants on June 13, 2010

I really should be studying right now…but I guess I’m kinda burnt out already. Can’t believe that an entire semester flew by in a flash and its the end of exams come tomorrow afternoon. Well, not that it is a permanent break or anything, but at least I’ll get a couple of weeks off to go home.

But I get slightly nervous just thinking of the day when the results would be out. A lot is banking on this semester’s and next semester’s results because I’ll be applying for vacation clerkships solely based on  first year results.  Job prospects in the legal sector aren’t exactly rocking the socks off anybody right now and I expect very fierce competition to secure the all important summer clerkship. It is all the more difficult for me having moved to a foreign land and not really having the “connections” (so to speak). I’ve heard that, in this field, it’s not what you know that matters, but who you know. I guess I have to work on that aspect of networking.

Although I don’t know for sure, I get the feeling that most of my (much) younger classmates aim to work in ‘Big Law’. ‘Big Law’ refers to the big law firms that have hundreds of lawyers on their payrolls and (obviously) pay the best salaries. They are primarily involved in corporate litigation work, mergers and acquisitions, and especially for Western Australia, mining law.

I had a chat with my study group, a few days ago, on our options after we graduate from law. I think everybody is as uncertain about the future as well. Somehow or other, they all have slight apprehension about finding suitable employment back home.

I’m not really sure if it is a good thing or not that I don’t particularly aspire to work in ‘Big Law’. Some senior associates that I’ve spoken to have mentioned that it is good to join a big firm at the start of your career, as it would really help to build a solid foundation. After one or two years, after you’ve learnt the ropes, you can move off to whatever you want to specialise in.  Somehow, the thought of working in a humongous office building, shuffling papers to and fro, shooting emails back and forth, attending meetings hours on end, doesn’t really excite me too much. Afterall, I’ve done all these before, and perhaps that is why I left the working world to pursue a law degree.

On the contrary, I can see myself working in a dingy office, in the corner of town, advocating for the rights of the poor and oppressed. Not that I’m doing any of that right now, nor have I ever done this before. I guess, the reason why I wanted to do a law degree was so that I could make a difference in some way… even a small difference. Of course, I do not need to work in a dingy office in the corner of town to make a difference, but you get my drift. Deep inside, I’m afraid that I’ll get sucked into the corporate world and turned into a corporate zombie, drawing a mega-huge salary but feeling nothing about the work I’ll be doing. Worse, I could be drawing a pathetic salary and also feeling nothing about the work. Wouldn’t that be a huge waste?

I’ve always said to my friends, in a utopian society, a lawyer is the most useless profession. Unfortunately, we live in a society far from utopian ideals. We live in a society full of strife, angst, unfairness, hate, discrimination, war, oppression, subjugation, inequality… and the list goes on… How can I make a difference? How would one little person coming from another place to a foreign land make a difference?

I guess, the truth of the matter is not thinking about making a difference, but just taking the first step forward in doing something worthwhile, in the hope that you can touch somebody’s life in someway.

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The Law of Contracts is not as intuitive as it should be…

Posted in Law School by legalrants on June 9, 2010

I’m taking some time out from studying the Contracts exam tomorrow to rant a little about my dissatisfacton about…well…many things.

Firstly, I can say for sure that I will NEVER ever be a Contracts lawyer (if there is even such a thing) or the equivalent of it. Despite the limited knowledge I have of the Law of Contracts, it certainly appears to me that specialists in such areas are just crafty little nugs out to squeeze every nook and crany of a loophole that is remotely even possible (but this is just my uneducated opinion, so no offence meant to anyone out there who may have a vested interest in the Law of Contracts).

But my real gripe is this: the more I learn about the Law of Contracts, the more I believe that contracts are overrated, and inherently and intrinsically unreliable. There are simply so many ways a contract can be nullified, for example, lack of CONSIDERATION (boy, don’t you love that word!), incompleteness and uncertainty. Sometimes, our good friend, EQUITY, comes into the picture to lend a (destructive) helping hand or two. Of course, there are even more ways to find loopholes — incorporation of pre-contractual statements or the prevention of it (Parole Evidence Rule), implied terms in law/custom/statute and so on.

Seriously, what is the point of having a contract at all?

After griping about the Law of Contracts, I’ll really love to start on my Contracts lecturers, but I’m afraid that there may be an implied term somewhere in the law school offer letter that would prohibit me from doing so…

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Some Random Thoughts About Law School

Posted in Law School by legalrants on June 8, 2010

I had my first law school exam today — Property I.

Personally, I think that law exams should be incorporated into the Olympics as a marathon. 15mins into the paper, my wrist and elbow turned so numb that I could barely write anymore. Obviously, if you are gonna participate in a marathon, it would be prudent to at least TRAIN for one! All the years of typing on the keyboard — blogs, emails, Facebook! — has left me physically inept in the art of penmanship.

Judging from the way the exam begun for me today, I should have known I was in for a tough time. One of the things I learnt in law school is NEVER MAKE ANY ASSUMPTIONS — this applies not just to applying the law or whatever that is related to law — it also includes NOT ASSUMING that you are taking the exam IN THE SAME ROOM AS YOUR FRIEND!

But for the graces of a kind examiner, who let me sit into her supervised hall to take the exam, I would still be scouring the campus now looking for the correct hall to take the paper. Amazing ain’t it? 4 years of undergrad school should have taught me to be wiser…. Hey wait a minute, all my undergrad papers were taken in a giagantic hall that accomodated everyone taking the same paper. Why should it be any different for law school?

Like I said, my first maxim in law school is — NEVER assume anything. Always check, then later, verify it. Then confirm what you’ve verified. I guess it would be prudent to CHECK one last time….. then confirm again.

You think I’m paranoid? You haven’t seen the worst of me.

To be honest, I stand corrected about a law school exam being a marathon event. On hindsight, it felt more like I was playing a pro chess tournament WHILE running a marathon — not only do you have to write EXTREMELY FAST (not to mention legibly), you have to be thinking about what you are currently writing, while planning the next point, while contemplating whether the last point you have written has contradicted any of your current points.  Isn’t that what you do in chess (not that I’m an avid chess player), always planning your next 10 moves and wondering if you made a mistake in your previous 20 moves?

And I was planning on finishing the paper with time to spare so that I could go back and “beautify” some of the answers …..prior equitable interest v subsequent legal interest, mortgages, Deed of Conveyances, determinable life estates, fixtures, adverse possession… it’s all becoming a blur to me now.

Thank goodness Property 1 is over…..well, Contracts 1, Criminal Law 1 and Torts 1 still await…

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