• April 3rd, 2016

Common Law

Paper, Order, or Assignment Requirements

CASE ANYALYSIS

You must answer each of the following questions (no more than 2,500 words each question, 25 marks each question, total of 50 marks).

1. Brennan J states in Mabo v Queensland (1992) 175 CLR 1 (page 136 of the course materials) that:

“This Court can either apply the existing authorities and proceed to inquire whether the Meriam people are higher “in the scale of social organization” than the Australian Aborigines whose claims were “utterly disregarded” by the existing authorities or the Court can overrule the existing authorities, discarding the distinction between inhabited colonies that were terra nullius and those which were not.”

(a) What do you think about this statement? (you are expected to provide detailed analysis and authority to support your view in a logically structured argument) (question value – 20 marks of the 25 marks for this question)

(b) What was the impact of this case on Australian law (both common law and statute)? (question value – 5 marks of the 25 marks for this question)

2. Kirby J states in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] 237 CLR 285 (page 563 of the course materials) that:

“A court must be consistent in what it says and does in its approach to interpretation (whether of the Constitution, or of a statute, contract or other document). Otherwise, the court will expose itself to criticism that its inconsistent approaches produce inconsistent outcomes.”

(a) What do you think about this statement? (you are expected to provide detailed analysis and authority to support your view in a logically structured argument) (question value – 20 marks of the 25 marks for this question)

(b) What was the impact of this case on Australian law (both common law and statute)? (question value – 5 marks of the 25 marks for this question)

PART B – CRITICAL LEGAL ANALYSIS

You need to answer two questions only from the following list (no more than 2,500 words each question, 25 marks each question, total 50 marks).

You must critically analyse and discuss the question. You must support each of your arguments with authority. If there is no case law to support your argument, you may use any academic or other literature or commentary that supports your argument.

1. The Court in Donoghue v Stevenson [1932] 1 AC 562 was “ahead of its time” in recognizing manufacturers liability. Do you agree or disagree? Please provide detailed reasons and analysis supporting your view, including relevant examples.

2. Critically compare and analyse the common law system in Australia to a civil law legal system. Choose a decision of the High Court of Australia and compare it to a decision of the highest court in the civil law legal system. Please provide detailed analysis to support your view.

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