Notre Dame Sydney
Law Society
2013
Competitions Guide Procedures at Trial The Case for the Prosecution Objections Cross Examination The Mountable Defense
Notre Dame Sydney Law Society
Acknowledgments Written by:
Edited by:
Julia Lavers
Competitions Director
Alexander Carlos Marketing Director
Eden Christopher President
Caroline Michel Publications Director
Contributions by:
Peter Gray
Alana Rafter
Caitlin Gallagher
Mark van der Hout
Aidan Williams
Kate Angus
IT Director
Third Year Representative
Education Director
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Contents 2013 Competition Changes Foreword
4
5
2013 Strategic Competitions Schedule Pete’s Website Tutorial Registration
8
10
Dress Code
11
Negotiation
13
Client Interview
18
Paper Presentation Mooting
6
23
37
Penalties and Forefeitures
46
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2013 Competition Changes • An all new online registration process; • A re-structure of competitions, including the added educational value whereby we introduce the release of score sheets; • An increase in number of competitors; • An expanded timeframe for competitions; and • The release of competition ranks and winners online - Sundays at 4pm!
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Foreword Now I should tell you being a law student is the best but I cannot. For you see, even the best textbooks can become useless when looking for a specific answer and yes other students will do great things for your confidence when they speak like a walking encyclopedia causing you to sink in your chair a little. By the time you realise this is making you panic, your panic is about to go into overdrive when you remember about final exams, where you must review the semester in a week and then in about three hours apply as much of it as is relevant to a set of facts as you can. But don’t worry because then you will have a second revelation: you shouldn’t fret about this for this is only first year, graduates have at least two more, straight law three more and double degree students four more years to go and all of them are filled with panic; which, is by the way, how you are going to spend most of the rest of your life. Now that’s something isn’t it? I think a lot of times it’s really easy to kind of wrap your head around this is law school, this is my life, this is what I need to live, eat, breathe but the problem with that is you are going to get so much other satisfaction from outside activities; not to mention the things that happen within the law school walls, that will make you a better law student. What competitions allow you to gain is the competitive advantage. We all know the goal of any and all law firms is to employ graduates with that competitive offering. In business they call this the “Differentiation Strategy”, where products that stand out from the rest are provided. For law students, the goal of “Differentiation Strategy” is to stay ahead of present and potential competition by strengthening and promoting your competitive offerings. Enter law competitions. Best of all, the NDSLS is making competitions a whole lot easier to get involved in! Our competitions workshop will give students all the required information on how to be your best and what the judges are looking for. We have re-structured the competitions to be fairer and formalised the format to set days so you always know when and where you’re due to compete. So whilst being a law student never stops being awful; with the NDSLS it just starts being awful in a different way. So go on, register for comps now. And good luck!
Julia Lavers Competitions Director competitions@ndsls.org
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2013 Competitions Schedule This year, the NDSLS has decided that competition rounds will run on Tuesday and Thursday evenings from 5 - 6pm and 6 - 7pm. Therefore, all competitors should ensure that they are available for all the dates and times as listed below. The way in which the schedule for dates and times is determined is by order of registration; the first registration received forming Team 1; the second, Team 2; and so on. In the event you have a class scheduled at these times, every effort will be made to make you an exception to the new registration process and place you in an appropriate time slot.
Semester One Negotiation
Commencement Date: Tuesday 19 March 2013 (Week 4) Structure: Two preliminary rounds followed by the Grand Final
- Round One: Week 4, Tuesday 19 March and Thursday 21 March
- Round Two: Week 5, Tuesday 26 March and Thursday 28 March
- Grand Final: Week 7, Thursday 11 April
Open to: All law students Judges: Kate Angus and Eden Christopher
* Additional judges dependent on competitor numbers.
Rules: www.alsa.net.au/images/2011/Rules/ALSA2011_NegotiationRules.pdf 6 | Competitions Guide 2013
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Client Interview
Commencement Date: Tuesday 7 May 2013 (Week 10) Structure: Two preliminary rounds followed by the Grand Final
- Round One: Week 10, Tuesday 7 May and Thursday 9 May
- Round Two: Week 11, Tuesday 14 May and Thursday 16 May
- Grand Final: Week 12, Thursday 23 May
Open to: All law students Judges: Kate Angus and Eden Christopher
* Additional judges dependent on competitor numbers.
Rules: www.alsa.net.au/images/2011/Rules/ALSA2011_ClientInterviewingRules.pdf
Semester Two Paper Presentation
Commencement Date: Monday 5 August 2013 (Week 2) Submissions Deadline: Thursday 10 October (Week 10) Open to: All law students Judges: Leroy Certoma (TBC) or Greg Walsh (TBC) Rules: www.alsa.net.au/images/2011/Rules/ALSA2011_PaperPresentationRules.pdf
Mooting
Commencement Date: Tuesday 2 August 2013 (Week 4) Structure: Two preliminary rounds followed by the Semi-Final and Grand Final
- Round One: Week 4, Tuesday 20 August and Thursday 22 August
- Round Two: Week 5, Tuesday 27 August and Thursday 29 August
- Semi-Final: Week 6, Tuesday 3 September and Thursday 5 September
- Grand Final: Week 7, Thursday 12 September
Open to: All law students Judges: TBA Rules: www.alsa.net.au/images/2011/Rules/ALSA2011_ NationalChampionshipMootRules.pdf
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Pete’s Website Tutorial Online Registration, Results and Highlights A core focus of the NDSLS of 2013 in delivering our new site has been to facilitate online engagement and participation with the Society. Over the summer, we have been busy working to deliver a new online experience. In 2013, the NDSLS will be making use of its enhanced online presence by making your participation and competition experience simpler and more efficient so that you can get on with the job of preparing for your competition and focusing on the stuff that matters. This year, forget those extensive email chains: you can register online for all competitions, download the competitions guide, and find results for every round and every competition online through our website and social media platforms. In addition to this, competitions will be filmed, with our website becoming the one-stop-shop for competition highlights, showcasing the best, most competitive and significant moments from competition rounds. Further building on the anticipation and excitement of competitions, for the first time ever, both the rankings of the rounds and competitions winners will be announced via the website, with a link to the announcements on both the home page and competitions page. This is an unprecedented commitment to ensuring that all students within our school have the capacity to stay up-to-date and have the opportunity to support, encourage and congratulate the participation, efforts and achievements of their peers. Perhaps these changes alone will be thing that pushes you to take part! Be sure to follow the NDSLS calendar and social media updates for registration times and the release of results. For all competitions related information head to: ndsls.org/competitions! Thanks for your support of the NDSLS and I look forward to receiving your feedback on our new site!
Peter Gray IT Director administrator@ndsls.org
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This is the hub for competitions on our website. The winners of each round of competitions will be posted here each Sunday at 4:00 pm. For more information, visit:
www.ndsls.org/competitions
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Registration www.ndsls.org/competitions/s1-register/ Registration for Negotiation and Client Interview competitions opens Monday March 4 and will close Friday March 8.
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Dress Code Check-Up
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Ready-for-work attitude
For a career in an office environment, you will be expected to wear corporate attire. Ladies should wear a business suit or otherwise, dress pants or skirt with a tailored blouse. Gentlemen should come in a shirt and tie, however a suit is preferable. Please ensure you are dressed appropriately.
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Testimonial Alana Rafter Secretary, SAUNDA Law, 3rd Year
NDSLS offer law students a great opportunity to put what you study into action. Whether it be through advising a client in the client interview competition, or representing a client in court in the mooting competition – both of these competitions effectively put study into context. I competed in both the client interview and mooting competitions and found the entire experience invaluable. Admittedly, the competitions can be daunting at first, however, that is part of the learning experience. Participation in both of these competitions improved my ability to think on my feet, to work as a team and to apply the law to real life scenarios. Some students worry that the competitions will be too time consuming but this is not the case. NDSLS is run and organised by fellow law students, who share the same study load, and this is taken into consideration when the competitions are scheduled. Rounds are held weekly and during a time that suits the competitors, effectively enabling students to sufficiently prepare and participate. I highly recommend all law students to enter at least one competition before the completion of
“ their degree.
�
I found the entire experience invaluable
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Law Society
Negotiation 2013 Competition Structure 1.
Up to thirty-two competitors compete in Rounds 1 and 2 of the competition, with four in the
Grand Final.
2.
Each round lasts for one hour:
• The first thirty-five (35) minutes of which are devoted to the negotiation between the teams
(40 mins by the time the strategy break is taken).
• Second, teams will have ten (10) minutes to conduct a self-analysis. Following a coin toss,
both teams will have five (5) minutes to make oral presentations to the judges.
• Third, the judges, in the absence of the opposing team, should then provide each team with a
critique of the team’s handling of the negotiation and self-analysis. The critique should last no
more than five (5) minutes.
3.
With the aim to pass on those who are stronger in the teams, the two highest-ranking teams from
Rounds 1 and 2, as determined by win-loss ratio, average scores and average winning margins,
according to Rules 3.5.1.2.1 - 3.5.1.4, advance to the Grand Final.
4.
The remaining competitors from each round are ranked on a reserve list according to their scores,
and in the event that a competitor is unable to participate in the Grand Final, that competitor’s
position is filled by the competitor ranked highest on the reserve list.
Problem and Applicable Law 5.
At 12pm, on the Tuesday prior to a negotiation scheduled for the following Tuesday night, and
similarly for Thursdays so that at 12pm on the Thursday prior to a scheduled negotiation, the
Competitions Director will email competitors a brief containing:
a) details of the venue of the negotiation; and
b) details of the common set of facts and a confidential set of facts. Competitions Guide 2013 | 13
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Conduct of the Negotiation 6.
Negotiations commence at both 5pm and 6pm.
7.
There are two main strategies which can be used to negotiate and which one used is entirely up
to counsel. The two strategies are:
• Interest-based bargaining – this is when the focus is not on the actual gains of the parties, but
rather why they want this gain, e.g. a person whose intellectual property has been in-fringed
upon may want compensation for their losses. Interest-based bargaining allows for gains to be
made by both parties, and a better compromise can be reached. Using the above example,
the compensation received by the wronged party may be lower, but the party who infringed
on their copyright might get recognition in other ways.
The four main types of interest which need to be considered are:
• Mutual – both parties have the same interest, e.g. resolving this matter efficiently.
• Complementary – different interests, but the same transaction covers both interests.
• Neutral – this has no effect on one party if this is granted to the other party.
• Competing – satisfying this interest has a detrimental effect on the other party.
• Adversarial bargaining – this is where the position is focused on, rather than the interests
behind it. The parties start at a point either above (if they’re the ones seeking remedies) or
below (if they are the representing the party in the ‘wrong’) what they are actually willing
to accept/provide. Each side then makes concessions until either an agreement is reached or
until there is a deadlock between the parties.
Knowing which strategy to use is crucial in a negotiation. It can mean the difference between getting
and not getting what you want.
8.
The maximum duration for each stage of proceedings, as indicated, must be strictly observed.
9.
At each stage of the proceedings, the warning bell will sign when ‘5 minutes’ remain and at ‘Time’.
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Judges and Assessment 10.
A single judge will preside at moots during Rounds 1 and 2, with three judges for the
Grand Final.
11.
The judging standards recognise that there is no one ‘correct’ approach to conducting a negotiation.
Instead, the strategies and techniques used will vary according to the nature of the problem, the
personalities involved and other relevant factors. However, the effectiveness of a negotiation can be
judged, at least in part, by its outcome.
12.
Judges will award each team a mark out of one hundred (100). These marks will be allocated as
follows: Stage of Proceedings
Maximum Marks
1. Negotiation Planning
10 marks
2. Adaptability
10 marks
3. Session Outcome
10 marks
4. Relationship Between Teams
10 marks
5. Exploration of Interest
10 marks
6. Creativity of Options
10 marks
7. Teamwork
10 marks
8. Negotiation Ethics
10 marks
9. Communication
10 marks
10. Self-analysis
10 marks
TOTAL
100 marks
13.
The criteria in the score sheet should not be read as requiring that the parties reach an agreement. In
some situations, the best outcome might be no agreement at all. Thus, the judging standards focus on
planning and the negotiation session
14.
No draws are possible.
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Complaints and Appeals, Penalties and Interpretation 15.
All complaints and appeals concerning scoring and assessment or the organisation, administration and
conduct of the competition must, within twenty-four hours of the matter giving rise to the complaint or
appeal, be submitted to the Competitions Director for determination.
16.
In respect of any alleged breach of these Rules, the Competitions Director will:
a) determine whether there has been a breach; and
b) determine what penalty, if any, is to be imposed for the breach.
17.
All questions concerning the interpretation of these Rules must be submitted to the Competitions
Director for determination.
18.
The Competitions Director may at any time determine such amendments or additions to these Rules or
other measures as may be necessary or convenient for the efficient organisation, administration
or conduct of the competition.
19.
All determinations made by the Competitions Director in accordance with these Rules will be final and
conclusive and binding on all competitors.
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Testimonial Mark van der Hout Competitions Grand Finalist, Client Interview, Mooting and Negotiation
With alternative dispute resolution methods fast developing as a means of resolving legal matters, the ability to negotiate effectively is crucial. A primary aim of legal practice is to avoid litigation whilst still serving your client’s interests. I found the negotiation competition to foster valuable communication, research and problem solving skills; all of which are essential as a lawyer. For those seeking to become practitioners, taking part in this event could provide the possible edge needed in an extremely competitive area. I would highly recommend that all law students get involved with this competition.
“
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Foster valuable communication, research and problem solving skills; all of which are essential as a lawyer
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Client Interview 2013 Competition Structure 1.
Up to thirty-two competitors compete in Rounds 1 and 2 of the competition, with four in the
Grand Final.
2.
With the aim to pass on those who are stronger in the teams, the two highest-ranking teams from
Rounds 1 and 2, as determined by win-loss ratio, average scores and average winning margins,
according to Rules 3.5.1.2.1 - 3.5.1.4, advance to the Grand Final.
3.
The remaining competitors from each round are ranked on a reserve list according to their scores,
and in the event that a competitor is unable to participate in the Grand Final, that competitor’s
position is filled by the competitor ranked highest on the reserve list.
Problem and Applicable Law 4.
At 12pm, on the Tuesday prior to a client interview scheduled for the following Tuesday night, and
similarly for Thursdays so that at 12pm on the Thursday prior to a scheduled interview, the
Competitions Director will email clients a brief containing a fact scenario outlining their personality
and the legal problem.
Conduct of the Client Interview 5.
Client Interviews commence at both 5pm and 6pm.
6.
Following the interviews, teams are required to conduct a five (5) minute critique of their performance,
beginning with a summary of the interview, stating the relevant legal issues to be addressed, and
moving on to an explanation of the intended course of action.
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7.
The interviews will proceed as follows:
Stage of Proceedings
Maximum Duration
The initial consultation and ascertaining of the problem, followed by a proposed solution or compromise for resolving the dispute.
40 minutes
A post-consultation period of private conferral between the solicitors.
5 minutes
Judges conferral with the client
5 minutes
Adjournment and feedback
5 minutes
Approximate Total
55 minutes
8.
It is at the discretion of teams, whether they wish to use books, notes, and other materials including
props. They must, however, be realistic.
9.
As with all consultations there is a fee schedule. For the purposes of this competition, the applicable
fee schedule is that initial consultations are free, with any and all secondary consultations standing
at a cost of $500 per hour. Solicitors may discuss the fee schedule at any point during the
consultation, the determination of the appropriateness of that particular point in time for doing so,
resting with the judges.
10.
The maximum duration for each stage of proceedings, as indicated, must be strictly observed.
However, judges may grant a short extension of time to allow competitors to respond to questions.
11.
At each stage of the proceedings, the warning bell will sign when ‘5 minutes’ remain and at ‘Time’.
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Judges and Assessment 12.
A single judge will preside at moots during Round 1, and 2, with three judges for the
Grand Final.
13.
Judges will award each competitor a score out of 100 marks, as follows:
Content 1. Working Atmosphere
10 marks
2. Description of the Problem
10 marks
3. Client’s Goals and Expectations
10 marks
4. Problem Analysis
10 marks
5. Moral and Ethical Issues
10 marks
6. Alternative Courses of Action
10 marks
7. Client’s Informed Choice
10 marks
8. Effective Conclusion
10 marks
9. Teamwork
10 marks
10. Post-interview Reflection
10 marks
Total 14.
Score
100 marks
No draws are possible.
Complaints and Appeals, Penalties and Interpretation 15.
All complaints and appeals concerning scoring and assessment or the organisation, administration and
conduct of the competition must, within twenty-four hours of the matter giving rise to the complaint or
appeal, be submitted to the Competitions Director for determination.
16.
In respect of any alleged breach of these Rules, the Competitions Director will:
a) determine whether there has been a breach; and
b) determine what penalty, if any, is to be imposed for the breach.
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17.
All questions concerning the interpretation of these Rules must be submitted to the Competitions
Director for determination.
18.
The Competitions Director may at any time determine such amendments or additions to these Rules or
other measures as may be necessary or convenient for the efficient organisation, administration
or conduct of the competition.
19.
All determinations made by the Competitions Director in accordance with these Rules will be final and
conclusive and binding on all competitors.
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Testimonial Caitlin Gallagher 3rd Year Rep, NDSLS
As a second year student, I felt I was ready to enter the Allens Client Interview Competition with one of my classmates. It was a great decision and my partner and I finished as semifinalists. We both learnt a lot from other students and the competition’s judges about how to conduct ourselves in a professional environment, how to improve our questioning techniques and how to deliver legal advice. The Client Interview Competition is both a fun and educational experience and I’ll definitely be entering again this year.
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Paper Presentation 2013 Competition Structure This is a two stage competition: the paper and a presentation. In this competition, students question, research and present a provocative insight on any legal topic of their choosing. Students then present their paper, and must be able to provide and be able to answer questions with a detailed review of abstracts based on the structure, composition, and technical merits, of their paper posed by the judge.
The Paper On any topic of the individual’s choosing, the paper is to be a minimum of 3000 words but must not exceed the maximum word limit of 5000 words. As with all tertiary papers, the word limit is exclusive of the bibliography, footnotes, titles and subtitles. However the use of any and all explanatory footnotes does count towards the word limit. In terms of referencing, the paper is to conform to the most current edition of the Australian Guide to Legal Citation. Culminating in a score out of forty (40), the three essays which receive the highest written mark will proceed to the final.
The Grand Final The individuals who proceed to the final make an oral presentation of their paper. This presentation is further awarded a mark out of sixty (60). This score is then combined with the original score out of forty (40) awarded to the paper itself, giving a score out of one hundred (100).
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The Presentation The presentation lasts for fifteen (15) minutes, exclusive of the judges questioning time. Warning bells will be sounded at the tenth, thirteenth and fifteenth minutes. Students may opt to utilize a whiteboard, overhead projector or a customized power point to assist or supplement their presentation.
Judges and Assessment 1.
Culminating in a score out of one hundred (100), the essay comprises forty (40) marks, and the
presentation sixty (60). In determining the winner of the competition, should competitors be tied, the
competitor who received the highest oral mark will be deemed the winner.
2.
Judges will award each team a mark out of one hundred (100). These marks will be allocated as
follows:
Written Paper Factors
• Challenging or difficult subject of interest or importance
• Clear definition and logical structure of ideas
• Analysis defines and engages with a sound conceptual, analytical and theoretical
framework
• Argument is focussed and well-developed throughout
• Independent, original and insightful treatment of all aspects of topic
• Identifies and engages with all relevant aspects of topic and includes appropriate
comparative references and insight
• Critical evaluation of primary and secondary sources
• Argument is reasoned, persuasive and supported by appropriate evidence
• Expression, style and presentation are excellent
• Consistent referencing, adhering to the Australian Guide to Legal Citation
• Correct grammar, spelling and punctuation throughout.
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Oral Presentation Factors
3.
• Clear, concise, confident, articulate, elegant expression
• Clear structure and organisation, logical progression and flow
• Communicates ideas naturally and easily
• Excellent variation in tone, pace and volume
• Effective and intelligent use of visual aids
• Appropriate use of stance, expression, gesture and humour
• Engages with audience through excellent manner and style of presentation
• Conveys sincerity and enthusiasm, stimulating the audience’s interest
• Mastery of subject matter
• Insightful appreciation of legal and policy aspects
• Detailed understanding of issues and scholarship
• Direct and focused response to questions
No draws are possible.
Complaints and Appeals, Penalties and Interpretation 4.
All complaints and appeals concerning scoring and assessment or the organisation, administration and
conduct of the competition must, within twenty-four hours of the matter giving rise to the complaint or
appeal, be submitted to the Competitions Director for determination.
5.
In respect of any alleged breach of these Rules, the Competitions Director will:
a) determine whether there has been a breach; and
b) determine what penalty, if any, is to be imposed for the breach.
6.
All questions concerning the interpretation of these Rules must be submitted to the Competitions
Director for determination.
7.
The Competitions Director may at any time determine such amendments or additions to these Rules
or other measures as may be necessary or convenient for the efficient organisation, administration or
conduct of the competition.
8.
All determinations made by the Competitions Director in accordance with these Rules will be final and
conclusive and binding on all competitors.
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NSW Young Lawyers Planning and Environmental Law Committee Essay Writing Competition Winning Paper LW302 Mining and Petroleum Law By Kate Angus Coal seam gas (CSG) is a new energy resource that potentially offers a viable alternative to other forms of energy and represents a valuable commodity for Australia. However, its use is controversial because of the uncertainties surrounding the environmental impacts of its extraction. Critically assess the current, and any proposed, regulatory scheme for the exploration, or extraction, of CSG in NSW.
I. INTRODUCTION Coal seam gas (“CSG”) is a naturally occurring resource recently recognised as a valuable alternative energy form. In response to increased interest in CSG by mining enterprises, the NSW State Government has been required to bolster the current legislative framework of mining activities to ensure that both the exploration and extraction of CSG is adequately regulated. However the rapid growth of the industry and relative uncertainty into the short and long term impacts of exploration and extraction has led to scepticism as to the framework’s suitability. This essay will seek to identify the key issues pertinent to CSG activities, discuss the deficiencies of the current regulatory framework in light of these concerns, and assess whether proposed reforms address such issues. II. WHAT IS COAL SEAM GAS? CSG refers to the mixture of gaseous hydrocarbons found within coal seams.1 Traditionally regarded as a major hazard with the possibility to cause disastrous explosions in underground coal mines,2 CSG is now recognised as a valuable, alternative energy resource. CSG is created during the process of coal formation, becoming trapped in the fractures of coal deposits, known as coal “seams” or
Ken MacDonald and Ben Zillmann, ‘Minerals and Energy’ in The Honourable Justice Margaret Beazely AO (ed) Australian Encyclopaedia of Forms and Precedents (Butterworths LexisNexis, 2012) 195. 2 C M Atkinson, Environmental Hazards of Oil and Gas Exploration (27 August 2002) LockTheGate.org <http://lockthegate.org.au/documents/doc-283-evironmental-hazards-of-oil-and-gas-exploration.pdf>. 1
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“cleats”.3 Held in place by water pressure, CSG is mainly extracted through processes whereby the water pressure of the coal seam is decreased, with the gas eventually being extracted by treatment of the water removed from the coal deposits.4 CSG extraction methods may be assisted by hydraulic or chemical processes5 known as “fraccing.”
As noted above, CSG has become increasingly recognised as a valuable resource. Within the mineral and resources industry, CSG has significant economic potential as a source of low cost fuel, with lower greenhouse gas emissions. With the development of efficient extraction technology, the commercial utility of CSG has rapidly increased,6 and should the CSG industry develop further, it is foreseeable that the industry will provide exports, state revenue and create a number of domestic jobs.7
However, several concerns arise from the exploration and extraction of CSG. CSG processes have the ability to impact upon both surface and sub-surface environments. This may be through the physical process of drilling wells, by virtue of the chemical products used during extraction, or by the waste products8 produced. Further concerns rest upon the rights of landowners upon whose land CSG activity is purported to take place, and the actual economic viability of CSG projects. III. THE REGULATORY FRAMEWORK A. The Current Framework Pursuant to the Petroleum (Onshore) Act 1991 (NSW), CSG is classified as a “petroleum” and thus is regulated in the same manner as onshore petroleum activities. The current framework rests upon a number of pieces of legislation, which in summation provide for the strongest regulation of CSG exploration and extraction in Australia.9 State governments are primarily responsible for the regulation of CSG activity, with the Commonwealth and Local governments playing little to no role. Ass. Prof. Samantha Hepburn, The Coal Seam Gas Industry in Australia (8 May 2012) Deakin University Research <http://deakin.edu.au/research/stories/2012/05/08/the-coal-seam-gas-industry-in-australia>. 4 CSIRO, What is coal seam gas? (18 May 2012) CSIRO <www.csiro.au/news/coal-seam-gas>’; Australian Petroleum Production and Exploration Association (APPEA) An Introduction to the Coal Seam Gas Industry (1March 2012) Australian Petroleum Production and Exploration Association (APPEA) <www.appea.com.au/csg/industry-facts/fact sheets/969-csgindustry.html>. 5 ABC Rural, About Coal Seam Gas, (Date unknown) ABC Rural – The Coal Seam Gas Debate <http://www.abc.net.au/rural/coalseamgas/?section=about>. 6 Ass. Prof. Samantha Hepburn, above n 3. 7 Nicola Swayne, ‘Regulating coal seam gas in Queensland: lessons in an adaptive environmental management approach?’ (2012) 29 Environmental and Planning Law Journal 163, 164. 8 Briny “production water,” salts, and remnant chemicals of fraccing processes. 9 Andrew Stoner MP and Brad Hazzard MP, ‘Government Unveils New Protections for Agricultural Land’ (Media Release, 11 September 2012). 3
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The Petroleum (Onshore) Act 1991 (NSW) provides the legislative mechanisms pursuant to which exploration10 and production11 of CSG may take place, and development approval and environmental assessment of CSG activities is specified for by the Environmental Planning and Assessment Act 1979 (NSW). Ultimately, the legislation provides the manner in which explorers may obtain exploration licences and petroleum titles, such as assessment leases, production leases and prospecting authorities.
In addition to these two key legislative instruments, CSG activities may also need to comply with additional legislative provisions, for example those of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), the Protection of the Environment Operations Act 1997 (NSW), the Water Management Act 2000 (NSW), the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) or the Native Title Act 1993 (Cth). B. The Proposed Framework In September 2012, the NSW State Government released its final version of the Strategic Land Use Policy (“The Policy”), which established a number of recommendations targeted at striking the “right balance between Australia’s agricultural, mining and energy sectors whilst ensuring the protection of high value conservation lands.”12 The recommendations cover a number of areas, such as:
- Increasing scientific knowledge pertinent to CSG, it’s value and impact
- Amending existing codes of practice to better address the exploration and extraction process,
environmental impacts and land acquisition concerns
- Developing effective communication channels with key stakeholders
- Strengthening the rights of landowners
In addition to the Policy, the NSW Government has also released a Draft Code of Practice for CSG Exploration (“The Code”). The Code is aimed as establishing a best practice framework, balancing the rights and concerns of private landowners with an access regime for explorers.13 In this sense, the Code of Practice rests heavily upon obtaining proper consent from landowners and government agencies, as well as placing emphasis on ensuring that CSG exploration projects are environmentally sound. Petroleum (Onshore) Act 1991 (NSW) s 29. Petroleum (Onshore) Act 1991 (NSW) s 41. 12 Brad Hazzard MP, ‘NSW Government adopts rigorous strategic approach to regional land use planning’, (Media Release, 21 May 2011). 13 NSW Government, Draft Code of Practice for Coal Seam Gas Exploration (at March 2012). 10 11
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A number of other guidelines and publications have been released by the NSW Government under the umbrella of strategic land use policy, all aimed toward strengthening the regulation of the CSG industry.14 The proposed framework may thus be viewed as continuing the comprehensive approach taken by the existing framework, ensuring that CSG exploration and extraction methods remains strongly regulated.
IV. EVALUATION To best assess the proposed framework, a comparative analysis of the existing and proposed regulatory frameworks will be conducted, assessing how the proposals address identified issues and concerns. A. Environmental Concerns
1. Chemical Conerns
The process of extracting CSG may sometimes rest upon the use of a chemical fraccing process. Whilst the NSW Government has placed a moratorium15 on the use of BTEX16 chemicals, community groups remain concerned about the effect non-BTEX chemicals used during CSG activity may have on surrounding surface and subsurface systems.
To this end, the Policy is directed towards maintaining the ban on chemically-assisted fraccing until such a time as when the National Industrial Chemicals Notification and Assessment Scheme has completed its assessment on the use and toxicity of fraccing chemicals.17 The Policy is also directed as increasing community knowledge as to the chemicals used in CSG activities, by having mining enterprises make available online lists of the chemicals used in CSG activities.18 In a manner that may be considered forward thinking, the Code provides that the onus is upon explorers to protect the environment from risks posed by fraccing, should the ban be lifted.19 Such measures are viewed to be the primary way in which community concerns as to chemical contamination of prime surface agricultural land and sub-surface water systems is to be alleviated. Hon Chris Hartcher MP, ‘Tougher controls on CSG’, (Media Release, 6 March 2012). Hon Chris Hartcher MP, ‘NSW Government Extends Fraccing Moratorium’, (Media Release, 2 December 2011); Hon Chris Hartcher MP, ‘NSW Government has listened and acted: Tough new conditions for coal and coal seam gas’, (Media Release, 21 July 2011). 16 Benzene, Toluene, Ethylbenzene and Xylenes 17 General Purpose Standing Committee No 5, Parliament of New South Wales, Inquiry into Coal Seam Gas (2012) 5.58-5.59. 18 General Purpose Standing Committee No 5, above n 17. 19 NSW Government, above n 13, 15. 14 15
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2. Water Concerns
Environmental concerns also rest upon the potential impact CSG activity may have upon NSW’s water resources. Community groups are concerned about “produced water” as a by-product of the CSG extraction process, as well as the impact upon groundwater resources in terms of depletion and contamination. “Produced water” is a remnant product of the CSG extraction process. Large volumes of this poor quality water are produced, often containing high levels of sodium, chlorine and other impurities,20 rendering the water unable to be conventionally disposed of. As inappropriate management of produced water can create irreversible damage to soil, vegetation and hydro-ecosystems,21 the current framework requires that produced water be disposed of in an approved, specified manner.22 In this regard, it can be said that current regulation is adequate, with the Code reinforcing those practices to be used with respect to produced water.23 Despite supporters of the CSG industry claiming that water systems are well understood,24 it has been identified that CSG activities have the potential to deplete groundwater supplies, as well as cross-contaminate them. The current framework requires mining enterprises to carry out baseline assessments of sub-surface water sources to determine if CSG activities will impact upon them.25 Companies are also required to hold a Water Access Licences in certain circumstances to ensure the continued and sustainable management of sub-surface water supplies.26 As Australia’s groundwater and aquifer systems are vast and expansive, the current regulations appear to be appropriate only for those circumstances where a single CSG operation takes place upon an aquifer. However, should the CSG industry develop, it is foreseeable that multiple CSG operations may drill into the one groundwater system, which can lead to significant impacts upon aquifer interaction, vertical recharge, structural integrity and artesian pressure.27 It may thus be said that the cumulative effect of multiple CSG projects in a particular area upon groundwater systems is National Water Commission, Australian Government, Onshore Co-produced Water: Extent and Management (at September 2011). 21 National Water Commission, above n 20, 1; M Taulis, ‘Australia and New Zealand CBNG development and environmental implications in KJ Reddy (ed), Coalbed Natural Gas: Energy and Environment (Nova Science Publishers, 2010) 421. 22 NSW Government, above n 13, 14. 23 Ibid. 24 General Purpose Standing Committee No 5, above n 17, 3.3. 25 NSW Government, above n 13, 14. 26 Ibid. 27 Geoscience Australia and Habermehl M, ‘Summary of Advice in Relation to the Potential Impacts of Coal Seam Gas Extraction in the Surat and Bowen Basins, Queensland: Phase One Report Summary for the Australian Government Department of Sustainability, Environment, Water, Population and Environment’ (29 September 2010) 1. 20
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not well understood.28 Such concerns have been addressed in Queensland through the comprehensive management of groundwater by the Water Act 2000 (Qld), rather than by a cursory division in petroleum legislation. Queensland regulation of CSG activities and their impact upon groundwater resources also rests upon an “adaptive management framework,”29 whereby continual monitoring, evaluation and reporting obligations are placed upon mining enterprises to ensure that any negative ramifications of CSG activity are immediately addressed.30 It would be appropriate for NSW to take a similar approach, and perhaps aim towards establishing a Commonwealth approach to CSG activities and their impact on water systems, particularly in circumstances where groundwater systems affected exceed the bounds of the State.
3. Repatriation of Agricultural Land
Returning land upon which CSG activities have taken place back to its natural state is an environmental concern shared by a number of stakeholders but predominantly by landowners, agricultural unions and governments.31 Concerns are particularly heightened in circumstances where land affected by CSG activity was previously used for agricultural activity. It should not be the case that Australia’s agricultural industry takes a step back whilst the CSG mining industry is developed. The current framework provides that mining enterprises are to provide a security deposit for the purposes of covering remediation works or unseen impacts.32 However whether these are adequate or held long enough is questionable.33 Further, there are no legislative obligations imposed upon mining enterprises to repatriate land upon which they have conducted CSG activities.34 The Policy provides a number of measures to confront the issue of returning land back or close to its original condition. Suggestions have been made that rather than, or in addition to, the payment of a security bond, mining enterprises be encouraged to take out insurance policies that can be invoked to meet long and short term repatriation costs.35 Further it is suggested that legislative mechanisms be inserted into the Petroleum (Onshore) Act 1992 to mirror those requirements of the Draft Code of National Water Commission, ‘Coal Seam Gas and Water’ (Position Statement, December 2010) 1. Geoscience Australia and Habermehl M, above n 27, 7. 30 Nicola Swayne above n 7, 163-185. 31 C M Atkinson, above n 2. 32 NSW Government, above n 13, 3. 33 General Purpose Standing Committee No 5, above n 17, 6.36; Hon Chris Hartcher MP, ‘Tougher controls on CSG’, (Media Release, 6 March 2012). 34 General Purpose Standing Committee No 5, above n 17, 6.47. 35 General Purpose Standing Committee No 5, above n 17, 6.45. 28 29
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B. Rights of Private Landowners
1. Access Arrangements
Under the existing regime, private landowners have certain rights that may operate as a restriction on mining titles.37 However, landowners and agricultural stakeholders have voiced concerns related to the bullish attitude taken by large mining enterprises in their attempts to gain exploration access to prime agricultural land in NSW upon which CSG activity is purported to take place.38 Such an attitude may prompt landowners to defer to the will of mining enterprises which, in the case of vulnerable and ill-informed landowners, can lead to access on unjust terms. The proposed framework aims to alleviate such concerns through a number of measures. Harmonising current legislative provisions with those of the Mining Act 1992 (Cth) is viewed to provide better protection for landowners of “cultivated land.”39 Further, amendment of the Petroleum (Onshore) Act 1991 (NSW) to specify that access agreements be entered into for both the exploration and extraction stage ensures that landowners are kept well informed of CSG activities taking place upon their land, at all stages of the process. The proposals appear to bring NSW CSG practices in line with those of Queensland, where access agreements and the recovery of costs associated with legal review of such agreements is a prominent legislative feature.40
2. Co-existence
Another concern of landowners, particularly farmers, is the inability for CSG activities to co-exist with agricultural activities. Whilst the current framework provides for the Government’s ability to veto applications where the land involved is prime agricultural land41 the framework does little to recognise how CSG activities may co-exist with agricultural activities. As touched upon by the discussion with regard to land repatriation, the agricultural industry need not suffer whilst the CSG industry develops. As CSG infrastructure may potentially consume large areas of land in the extraction phase, it is necessary for consideration to be had to the agricultural General Purpose Standing Committee No 5, above n 17, 6.50; NSW Government, above n 13, 3 Petroleum (Onshore) Act 1991 (NSW) Parts 4A and 5. 38 Sean Nicholls, ‘Entire state up for grabs in coal seam gas and mining rules,’ The Sydney Morning Herald (online), 12 September 2012, <http://www.smh.com.au/environment/entire-state-up-for-grabs-in-coal-seam-gas-and-mining-rules20120911-25qnj.html>; NSW Government, above n 13, 7. 39 General Purpose Standing Committee No 5, above n 17, 9.44. 40 Petroleum and Gas (Exploration and Safety Act 2004 (QLD) s 532(4)(b). 41 Petroleum (Onshore) Act 1991 (NSW) s 71. 36 37
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value of the land and whether allowing CSG activity to take place will detract from this value. The Petroleum (Onshore) Act 1991 has been recognised to have been drafted with conventional mining activities in mind, and as CSG exploration and extraction is performed not in this conventional manner, the legislation is deficient when it comes to regulating the CSG model.42 The proposed framework recommends the requirement of an Agricultural Impact Statement be prepared for all exploration licence applications.43 This should extend to ensuring that assessment of the viability of a CSG project takes into account the comparative value of the land in terms of its use for agricultural activities, and perhaps consider alternative locations in which wells may be drilled for extraction where the effect upon agricultural land is purported to be significant. C. Economic Concerns In addition to concerns as to environmental impacts and landowner rights, community groups have expressed concern over the economic viability of CSG. It has been noted that development of the Australian CSG industry has the potential to provide greater exports, state revenue and create jobs.44 It is thus foreseeable that development of the industry will lead to regional development and investment. However these projections remain ambiguous, and must be contrasted with the concerns highlighted above, in addition to concerns raised by special interest groups.45 Current concerns rest upon a number of factors should CSG activity increase, including:
- The ability for current infrastructure to cope with increased demand
- The impact upon labour supply, as the mining industry may attract workers away from other industries
- Impacts upon the housing market as mining industry employees compete in the same market as those
outside the industry46
In an attempt to confront these concerns, the Policy is directed toward increasing the transparency surrounding CSG activity. The provision of projections on employment opportunities to be created in regional areas47 may better quell community concerns and enable subsequent assessments to be made as to the wider economic impacts of CSG activity. In this regard, it may be noted that the proposed framework may adequately address economic concerns through the continual provision of General Purpose Standing Committee No 5, above n 17, 7.38. General Purpose Standing Committee No 5, above n 17, 10.54. 44 Nicola Swayne, above n 7, 164. 45 General Purpose Standing Committee No 5, above n 17, 11.22; Josephine Tovey, â&#x20AC;&#x2DC;Winemaker sees red over coal seam gas mining,â&#x20AC;&#x2122; The Sydney Morning Herald (online), 8 November 2011, <http://www.smh.com.au/environment/ winemaker-sees-red-over-coal-seam-gas-mining-20111108-1n4mh.html>. 46 General Purpose Standing Committee No 5, above n 17, 11.24. 47 General Purpose Standing Committee No 5, above n 17, 11.40. 42 43
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information pertinent to the economic consequences of CSG activity. V. CONCLUSION As demonstrated by the preceding discussion, balancing environmental concerns and landowner interests with the purported economic benefits of the CSG industry is a complicated process. Whilst the current regulatory framework has been built upon by proposals of the State Government, it is important to be mindful of the fact that an adaptive approach may not be appropriate where little is known about the true impacts of industry practice. In order to guarantee the viability of CSG activities, it is paramount that full regulatory controls are imposed upon mining enterprises, with the support of strong and independent research and the initiation of proper stewardship.48 Word count: 2,491 words
48
Ass. Prof. Samantha Hepburn, above n 3.
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Bibliography Books and Encyclopaedias MacDonald, K and Zillmann, B, ‘Minerals and Energy’ in The Honourable Justice Margaret Beazely AO (ed) Australian Encyclopaedia of Forms and Precedents (Butterworths LexisNexis, 2012) Taulis, M, ‘Australia and New Zealand CBNG development and environmental implications’ in Reddy, KJ (ed), Coalbed Natural Gas: Energy and Environment (Nova Science Publishers, 2010)
Internet Materials ABC Rural, About Coal Seam Gas, (Date unknown) ABC Rural – The Coal Seam Gas Debate <http://www.abc.net.au/rural/coalseamgas/?section=about> Atkinson, C M, Environmental Hazards of Oil and Gas Exploration (27 August 2002) LockTheGate.org <http://lockthegate.org.au/documents/doc-283-evironmental-hazards-of-oil-and-gas-exploration.pdf> CSIRO, What is coal seam gas? (18 May 2012) CSIRO <www.csiro.au/news/coal-seam-gas>’; Australian Petroleum Production and Exploration Association (APPEA) An Introduction to the Coal Seam Gas Industry (1 March 2012) Australian Petroleum Production and Exploration Association (APPEA) <www.appea.com.au/csg/industry-facts/factsheels/969-csgindustry.html> Hepburn, S, The Coal Seam Gas Industry in Australia (8 May 2012) Deakin University Research <http://deakin.edu.au/research/stories/2012/05/08/the-coal-seam-gas-industry-in-australia>
Journal Articles Swayne, N, ‘Regulating coal seam gas in Queensland: lessons in an adaptive environmental management approach?’ (2012) 29 Environmental and Planning Law Journal 163
Legislation Petroleum and Gas (Exploration and Safety) Act 2004 (QLD) Petroleum (Onshore) Act 1991 (NSW)
Media Releases Hartcher, C, ‘NSW Government Extends Fraccing Moratorium’, (Media Release, 2 December 2011) Hartcher, C, ‘NSW Government has listened and acted: Tough new conditions for coal and coal seam gas’, (Media Release, 21 July 2011) Hartcher, C, ‘Tougher controls on CSG’, (Media Release, 6 March 2012) Hazzard, B, ‘NSW Government adopts rigorous strategic approach to regional land use planning’, (Media Release, 21 May 2011)
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National Water Commission, ‘Coal Seam Gas and Water’ (Position Statement, December 2010) Stoner, A and Hazzard, B ‘Government Unveils New Protections for Agricultural Land’ (Media Release, 11 September 2012)
Newspaper Articles Nicholls, S, ‘Entire state up for grabs in coal seam gas and mining rules,’ The Sydney Morning Herald (online), 12 September 2012, <http://www.smh.com.au/environment/entire-state-up-for-grabs-in-coal-seam-gas-and-mining-rules- 20120911-25qnj.html> Tovey, J, ‘Winemaker sees red over coal seam gas mining,’ The Sydney Morning Herald (online), 8 November 2011, <http://www.smh.com.au/environment/winemaker-sees-red-over-coal-seam-gas-mining-20111108-1n4mh.html>
Quasi-Legislative Materials NSW Government, Draft Code of Practice for Coal Seam Gas Exploration (at March 2012) General Purpose Standing Committee No 5, Parliament of New South Wales, Inquiry into Coal Seam Gas (2012)
Reports and Submissions National Water Commission, Australian Government, Onshore Co-produced Water: Extent and Management (at September 2011) Geoscience Australia and Habermehl M, ‘Summary of Advice in Relation to the Potential Impacts of Coal Seam Gas Extraction in the Surat and Bowen Basins, Queensland: Phase One Report Summary for the Australian Government Department of Sustainability, Environment, Water, Population and Environment’ (29 September 2010)
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Law Society
Mooting 2013 Competition Structure 1.
Up to 32 competitors compete in Rounds 1 and 2 of the competition, 8 in the Semi-Final,
and 4 in the Grand Final.
2.
In Rounds 1 and 2, the Semi-Final and the Grand Final, competitors in teams of two, are randomly
assigned to a court, and designated as senior counsel for the appellant, junior counsel for the
appellant, senior counsel for the respondent or junior counsel for the respondent.
3.
With the aim to pass on those who are stronger in the teams, the four highest-ranking teams from
Rounds 1 and 2, as determined by win-loss ratio, average scores and average winning margins,
according to Rules 3.5.1.2.1 â&#x20AC;&#x201C; 3.5.1.4, advance to the Semi-Final.
4.
After the Semi-Final round, the two teams who have attained the highest aggregate scores across the
rounds, as determined by win-loss ratio, average scores and average winning margins, according to
Rules 3.5.1.2.1 â&#x20AC;&#x201C; 3.5.1.4, advance to the Grand Final.
5.
The remaining competitors from each round are ranked on a reserve list according to their scores,
and in the event that a competitor is unable to participate in the Semi-Final or the Grand Final, that
competitorâ&#x20AC;&#x2122;s position is filled by the competitor ranked highest on the reserve list.
Problem and Applicable Law 6.
At 12pm, on the Tuesday prior to a moot scheduled for the following Tuesday night, and similarly
for Thursdays so that at 12 pm on the Thursday prior to a scheduled moot, the Competitions Director
will email competitors a brief containing:
a) details of the venue of the moot;
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c) details of the grounds of appeal to be argued, respectively by senior and junior counsel; and
d) details of any relevant legislation.
7.
Jurisdiction to hear the appeal will be assumed.
8.
Counsel may not make procedural submissions.
9.
The relevant law will be that applicable in New South Wales, and argument is confined to the common
law unless legislation is detailed in accordance with Rule 5.5.
10.
The problems will be limited to the following areas of law:
a) contract;
b) criminal law; and
c) tort.
List of Authorities 11.
No later than 4pm on the day before the moot, competitors must in accordance with Rule 6, email
their opponent and the Competitions Director a memoranda, detailing in appropriate form:
1. An overview of the structure of the teamâ&#x20AC;&#x2122;s submission,
2. Major arguments of the team
3. An outline of the allotted team member speaking times
4. The list, five (5) being the maximum, of the authorities on which counsel rely.
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Conduct of the Moot 12.
Moots commence at both 5pm and 6pm.
13.
The moot will proceed as follows:
Stage of Proceedings
Maximum Duration
Submissions of senior counsel for the appellant
15 minutes
Submissions of junior counsel for the appellant
15 minutes
Submissions of senior counsel for the respondent
15 minutes
Submissions of junior counsel for the respondent
15 minutes
Adjournment and Feedback Approximate Total
1 hour
14.
The maximum duration for each stage of proceedings, as indicated, must be strictly observed.
However, judges may grant a short extension of time to allow competitors to respond to questions.
15.
At each stage of the proceedings, the warning bell will sign when ‘5 minutes’ remain and at ‘Time’.
16.
Counsel is required to provide all copies of all authorities referred to in their List of Authorities to
the judge(s).
17.
During the moot, counsel may not refer in detail to authorities not appearing on their List of Authorities
or that of their opponent.
18.
Counsel may not provide to the court any documents other than their List of Authorities and copies of
their authorities.
Judges and Assessment 19.
A single judge will preside at moots during Round 1 and 2 and the Semi-Final and three judges for
the Grand Final.
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20.
Judges will award each competitor a score out of 100 marks, as follows: Content Organisation of Presentation
15 marks
Development of Argument
25 marks
Questions from the Bench
25 marks
Speaking Ability and Delivery
25 marks
Written Submissions
10 marks
Total 21.
Score
100 marks
No draws are possible.
Complaints and Appeals, Penalties and Interpretation 22.
All complaints and appeals concerning scoring and assessment or the organisation, administration and
conduct of the competition must, within twenty-four hours of the matter giving rise to the complaint or
appeal, be submitted to the Competitions Director for determination.
23.
In respect of any alleged breach of these Rules, the Competitions Director will:
a) determine whether there has been a breach; and
b) determine what penalty, if any, is to be imposed for the breach.
24.
All questions concerning the interpretation of these Rules must be submitted to the Competitions
Director for determination.
25.
The Competitions Director may at any time determine such amendments or additions to these Rules
or other measures as may be necessary or convenient for the efficient organisation, administration or
conduct of the competition.
26.
All determinations made by the Competitions Director in accordance with these Rules will be final and
conclusive and binding on all competitors.
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SAMPLE WRITTEN SUBMISSIONS SUPREME COURT OF NSW CIVIL DIVISION APPEAL BETWEEN: JACK MORGAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPELLANT - and JILL HAMLIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RESPONDENT APPELLANT’S OUTLINE OF SUBMISSIONS APPELLANT’S SUBMISSIONS 1.
The appellant’s email sent at 6:00pm, 25 June 2011 to the respondent was a complete and
unqualified assent to the terms (acceptance) of the respondent’s email received by the appellant at
5:00pm, 25 June 2011 (offer). The statements on delivery of the good by the appellant in his email
were not intended to be terms of a contract.
2.
Alternatively, the appellant’s email formed a preliminary contract, the statements on delivery of the
good being an offer in relation to a separate contract involving minor details.
3.
The appellant’s acceptance was effective when received by the respondent, which is when the email
was capable of being retrieved by her, namely, a few minutes after it was sent.
4.
The respondent’s email contained an option to keep the offer open in favour of the appellant
until 12:00pm, 26 June 2011.
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ARGUMENTS IN SUPPORT OF THE ABOVE SUBMISSIONS Submission 1 1.1
The modern approach of courts is to uphold agreements wherever this is possible: Meehan v Jones
(1982) 149 CLR 571 at 589. Therefore, the relevance of many of the older cases may be doubted.
1.2
That the statements on delivery of the good by the appellant in his email were not intended to be terms
of the contract is inferred from a number of factors:
1.2.1 the content of the statement, its being significantly less important than the parties’ agreement to sell
the car for $19,000: see Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41.
It is unlikely it forms part of an essential term, as it is unlikely that the appellant would have risked
losing acquiring the car he had always loved by bargaining for the introduction of a new term that
is unreasonable, from both parties’ perspectives: if there were no such terms (that the respondent
would deliver the car in return for a lift back with the appellant), the appellant would have to
make his way to her house to pick it up. So, whether they agree to such terms or not does not benefit
the appellant, and inconveniences the respondent. It is more reasonable to assume that the appellant
was bringing up a matter of little legal significance, rather, inviting the respondent to an opportunity
to catch up with him.
1.2.1.1
An example of a statement included in a written contract but held not to be a term, in the
sense of being a promise, was in Kleinwort Benson Ltd v Malaysia Mining Corp Berhad [1989]
1 WLR 379.
1.2.2 the simplistic and flexible form of the statement – “I hope you can bring it over this weekend – I’ll
even give you a free lift home in it!”. Hoping and giving free favours is not the language of legal
promises. Submission 2 2.1
The modern approach of courts is to uphold agreements wherever this is possible: Meehan v Jones at
589. Therefore, the relevance of many of the older cases may be doubted.
2.2
Before either party mentioned the issue of delivery, there were all the essential terms required to
make a complete and certain agreement – parties, subject matter and consideration (being
the $19,000).
2.3
The words “Allright Jill, you win, I’ll take it for $19,000” suggest finality in relation to the real issues
barring contract between the parties.
2.4
Parties may agree to essentials first, to add detail in subsequent written contracts: Lennon v Scarlett &
Co (1921) 29 CLR 499. Submission 3 3.1
Acceptance of an offer is not effective unless and until communicated to the offerer: Tallerman & Co
Pty Ltd v Nathan’s Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93 at 111.
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3.2
Section 13A of the Electronic Transactions Act 2000 (NSW) provides:
“(1) For the purposes of a law of this jurisdiction, unless otherwise agreed between the
originator and the addressee of an electronic communication:
(a) the time of receipt of the electronic communication is the time when the electronic
communication becomes capable of being retrieved by the addressee at an electronic address
designated by the addressee…
(2) For the purposes of subsection (1), unless otherwise agreed between the originator
and the addressee of the electronic communication, it is to be assumed that the electronic
communication is capable of being retrieved by the addressee when it reaches the
addressee’s electronic address.”
3.3
Applying this, for the purposes of an action for breach of contract brought in this court, the time
of receipt of the appellant’s electronic communication is the time when the communication became
capable of being retrieved by the respondent (that is, almost instantaneously) at the respondent’s
designated email address. The respondent’s use of her email address to respond to the appellant’s
initial inquiries into the sale, indeed, to make the offer, constitutes designating this address for
communicating acceptance by electronic communication.
3.4
Section 14E of the Electronic Transactions Act provides:
“… the provisions of sections 7 and 13-13B apply to:
(a) a transaction constituted by or relating to a contract, or
(b) an electronic communication relating to the formation or performance of a contract,
in the same way as they apply to a transaction or electronic communication referred to in
those sections, and so apply as if the words “For the purposes of a law of this jurisdiction”
were omitted.” 3.5
This clarifies the relevance of s 13A to the issue of whether the appellant communicated acceptance to
the offeror respondent.
Submission 4 4.1
If the respondent had intention to create legal relations in her email of offer (and it is not disputed
that this is so), the proximity of this offer with the statement (made in the same email) “if you want it
you better let me know by noon tomorrow because I’m not going to fend off eager purchasers while
you spend days making up your mind” suggests she intended this statement to also have legal effect.
Further, the significance of the statement (for the appellant) is taken into account: Hospital Products Ltd
v United States Surgical Corp.
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4.2
The appellant’s consideration was his hurried contemplation of whether or not to accept.
Dated: 14 August 2012
___________________________________________ Aidan Williams, Kieren Jackson, Ameer Randhawa Co-counsel
LIST OF AUTHORITIES
Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 Kleinwort Benson Ltd v Malaysia Mining Corp Berhad [1989] 1 WLR 379 Lennon v Scarlett & Co (1921) 29 CLR 499 Meehan v Jones (1982) 149 CLR 571 Tallerman & Co Pty Ltd v Nathan’s Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93
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Testimonial Aidan Williams Education Director, NDSLS My one regret regarding the competitions run by the NDSLS was not getting involved in them in my first, second and third years of study. I have been in the Client Interview Comp, Negotiations Comp and Mooting Comp, and each was both fun and great for picking up useful skills I can use in my future career. Every one of us can improve in our questioning techniques, negotiating influence and thinking quickly on our feet... These are all very different skills to those tested in exam environments! The experience was also a great confidence boost, as I did better than I first expected. Finally, they further, inspired my passion for the law, to continue seeking a career in this field.
â&#x20AC;&#x153;
â&#x20AC;?
My one regret was not getting involved in my first, second and third years of study
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Penalties The following penalties apply:
10.1.1. Continuations beyond the time limit specified without the Judgeâ&#x20AC;&#x2122;s express permission after
thirty (30) seconds have elapsed: one (1) mark for every thirty seconds or part thereof.
10.1.2. If a written component exceeds the page limit: two (2) marks per page.
10.1.3. If a written component contravenes any of the specified formatting requirements set out: three
10.1.4. Late submission of written components: two (2) marks for every ten (10) minutes late or part
(3) marks (this penalty is capped at 3 marks per round, regardless of multiple infringements).
thereof, up to a total of ten (10) marks.
10.1.5. If a competitor is more than five (5) minutes late for the commencement of the round: two (2)
marks per five (5) minutes or part thereof. For clarity, penalties will only apply onwards from
5 minutes after the round is scheduled to begin.
10.1.6. In the Final Rounds, if a competitor cites authority or argument that is not outlined within their
written submissions or within the limited list of materials without being granted leave to
introduce this information from the Judges: one (1) marks per authority.
10.1.7. If a competitor or team observes or is briefed on a Round in which they are not competing
before they have completed that round (as per Rules 3.2.2 and 3.4.1): disqualification.
10.1.8. If the allocation of speaking time is not included within written submissions (as per Rules 6.5
and 7.2.2): two (2) marks per team.
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10.2. Where a penalty is levied against a team, the penalty will be divided equally amongst
counsel for that team. Where an individual competitor is disqualified, their team will be able to
continue in the competition provided that two (2) team members remain in the team.
10.3. Judges shall not be notified of the application of any these penalties at any time.
10.3.1. If a Judge becomes aware that a penalty has been or will be applied, they will be instructed
not to take this penalty into consideration when marketing the competitors
10.3.2. Judges do not have the discretion to dispense with these penalties.
10.4. The Competitions Director has full discretion as to the application of these penalties.
10.5. The Competitions Director also has discretion as to the deduction of marks or disqualification of a
competitor or a team for any serious breach of the Rules that is not within the Rules.
Competitors should note penalties may vary from competition to competition. For the most current rules applicable to each competition please see ndsls.org/competitions or http://www.alsa.net.au/, follow the links to â&#x20AC;&#x153;competitionsâ&#x20AC;? and download the 2011 (note: these are the most current) rules.
Appeals
11.1. Appeals will be dealt with in accordance with the ALSA Appeals Procedure By-Law.
Forfeitures
12.1. Any team that forfeits will be deemed to have lost that round.
12.2. Any team whose opponent forfeits a round will be incorporated into a three-way interview as set
out in Rule 3.4.4. If this is not possible, the team will be deemed to have won that round and their
margin will be the average of their margins from the other rounds.
12.3. Any team which forfeits a round shall be excluded from progressing through to the Final Rounds.
Competitions Guide 2013 | 47
The NDSLS
Enriching the Student Experience
That’s all folks!
L-R: Alexander Carlos, Shelby van Ooran, Caitlin Gallagher, Julia Lavers, Sean D’almada-Remedios, Eden Christopher, Professor Michael Quinlan, Lauren Absalom, Natalie Baladi, Aidan Williams, Rachel Bennett, Peter Gray, Caroline Michel, Daniel Austin
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