LA1102: Legal Research and Writing Analysis - Assessment : Take Home Exam

This essay was the major assessment for LA1102 at JCU Cairns in 2016. LA1102 focuses on legal research skills and writing analysis. The subject has a focus for students to learn and apply Australian Guide to Legal Citation. As with many problem or tutorial cases in the study of law, the facts are usually fictitious, but also usually drawn from similar and very real cases. Right from the start of law study students are introduced to real scenarios, and opportunities to apply a small but growing kit bag of tools. This essay again demonstrates a theme for all legal arguments. "On what authority?" which means when you assert a fact or idea upon which your argument relies, then cite the authority of location of that fact or idea. If you can cite authoritative decisions that are similar or the same to the facts in your case or legal problem, then you're on increasingly solid ground. No facts from any authoritative sources? you might as well stay at home.

This essay assessment grade: Distinction

Paul's LA1102 course grade: Distinction

Memo re: Carolyn and Anthony Vines (‘the Vines’)

From: Paul Jackson

To: Lecturer

Date: 27 April 2016

This advice regards how the law may operate in relation to the Vines’ case, if it proceeds to the Queensland Magistrates Court. The question is ‘whether the court will determine if the Townsville City Council (‘council’) owes the Vines a duty of care in the provision of their flood advice.’

Facts

• Mrs Vines contacted the council on 7 November 2014, to ask if the property they wished to purchase was subject to flooding.

• Mrs Vines advised the council officer that she would rely on the information when deciding to purchase the property in question.

• The council officer advised there was no flood risk.

• It transpires the council website was updated on 5 November 2014, two days prior to the advice being given. The update included that the property in question was subject to flooding of up to one metre.

• Relying on the advice, the Vines completed the purchase of the property on 8 December 2014.

• The flood risk affected the cost of building on the property, to such an extent, the Vines were unable to afford to build. They subsequently had to sell the property at a loss of $100 000.

I Introduction

This case would be heard in the Queensland Magistrates Court, under its original jurisdiction to hear civil matter cases up to $150 000.[1] There are three recent decisions in superior courts which may be relevant to this case. Two have jurisdiction over the Queensland Magistrates Court in the Queensland court hierarchy, the other is a decision of the Victorian Court of Appeal. These superior court decisions have potentially binding ratio or persuasive relevance which may guide advice for the Vines. Please refer case note summary at the end of this memo.

Before considering these cases, it is important to understand stare decisis and the doctrine of precedent. Stare decisis means ‘to stand by decided matters’ and not disturb matters which are settled. The doctrine of precedent provides that ‘like should be treated alike’, that similar cases should be decided the same way when the facts are materially the same. Lower courts are bound to follow the decisions of superior courts in the same court hierarchy, where the facts are materially the same, but this rule only concerns the ratio.[2]

With regard relevant cases, it is ultimately the ratio, the reason for the decision in a superior court, which will be binding on the Vines case should the facts be materially similar.

II Are any of the cases from a superior court in the same hierarchy?

Fantastic[3] is a 2010 decision of the Full High Court of Australia. This is not only the highest court in the Queensland court hierarchy, but as established in Rowland it is the court of common apex in Australia.[4] The 1971 decision in Rowland confirmed that a decision of the High Court, when exercising its appellate jurisdiction, would be binding when hearing appeals from any state or territory Supreme Court. Later with the passing of the Australia Act 1986 (Cth), the Commonwealth extinguished the last appeals option available, that being from state courts to the Privy Council, still possible under the Judicial Committee Acts 1833 and 1844. Since 1986 the High Court is confirmed as the court of common apex in Australia and decisions binding on the Queensland Magistrates Court, where the Vine’s case would be heard.

Owen[5] is a 2011 decision from the Queensland Court of Appeal. This is the Queensland Supreme Court sitting as a full court and as such, is the highest court in the Queensland court hierarchy, inferior only to the High Court of Australia. Decisions of the Queensland Court of Appeal are binding on the Queensland Magistrates Court, unless the case can be distinguished on the material facts.[6]

Lyng[7] is a decision of the Victorian Court of Appeal in 2012 however is outside the Queensland Court Hierarchy. Decisions of other state supreme courts are not binding but may be viewed as highly persuasive.[8]

III Are any of the cases distinguishable?

It is possible the Queensland Magistrates Court may distinguish Fantastic on the material facts, as advice was provided by the ABZ Bank that was relied upon and caused financial loss. However, unlike the Vines’ case, the Fantastic advice was clearly sought ‘in confidence and without responsibility’ and was provided in the same manner.[9] It is possible the council may argue to distinguish this case on this fact. There is however further precent in Thornton v Shoe Lane Parking[10] that while the facts may be materially different, the decision is still persuasive. The judgement of Fantastic also expressly cited Donoghue v Stevenson[11] which established the neighbour principle and a duty of care, which is reflected in the ratio of Fantastic discussed later in this memorandum.

In Owen, financial advice was provided by All Insurance Ltd to Mr Owen, the advice was professional in nature and delivered by one financial professional to another. The facts do not appear materially different with regards a duty of care, or the neighbour principle from Donoghue v Stevenson, so not distinguishable on the facts.

In Lyng, the Manningham City Council provided advice which transpired to be incorrect and caused financial loss to the purchasers of a property. It appears the facts are not materially different to the Vines’ case.

IV Are any decisions per incuriam or from an equally divided court?

It is possible the council may argue that while decisions of the Queensland Court of Appeal are, as a general rule, binding on the Queensland Magistrates Court, the decision in Owen was per incuriam[12] and should not be binding on this case. The council may quote de Jersey CJ, ‘This court believes there is no binding authority’[13] but in doing so, council are likely to weaken their case.

This is because the decision in Owen was from an equally divided court. Under s41(1) Supreme Court of Queensland Act 1991 (Qld), when a court is equally divided, the Chief Justice is to preside. Under s(42)(a) of the Act, the opinion of the presiding judge will prevail, so in this case the decision of the court is the decision of the Chief Justice. This type of decision is known as a statutory majority, which is not binding on inferior courts in the Queensland Court Hierarchy, see Langley v Langley[14]

V Are any decisions binding?

Lyng is a decision from the Victorian Court of Appeal, a court outside the Queensland court hierarchy. The decision from this court is not binding, although in the absence of a binding authority the case may offer persuasive ratio or obiter.[15] Obiter is additional commentary made by the judges but not part of the reasoning, otherwise known as ratio, of the decision.

Owen, as established above, was a statutory majority decision from an equally divided court so there is no binding ratio. [16]

Fantastic was a 4:0 majority decision from the High Court which dismissed the appeal and contained this ratio:

‘A duty of care may arise where a special relationship exists between the parties. If someone whom possesses a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies on such skills, a duty of care will arise. There was no such relationship between the Appellant and the Respondent in this case.’

It may be arguable, as discussed earlier, to distinguish the material facts of Fantastic with the case of the Vines because the Fantastic advice was expressly sought and expressly provided without responsibility.[17] In the Vines’ case, advice was provided by council without any qualification of responsibility, but it was advice expressly requested from the council, as holders of the special information. This appears a crucial material fact in the Vines’ case.

In obiter from Fantastic:

[P]eople often express opinions on social or informal occasions even when they see that others are likely to be influenced by them. They often do that without taking that care which they would take if asked for their opinion professionally or in a business connection. A duty of care would not arise on such occasion.

But further:

A reasonable man, knowing that he was being trusted or that his skill and judgment were being relied on would have three courses open to him. He could keep silent or decline to give the information or advice; or he could give an answer with a clear qualification that he accepted no responsibility for it or that it was given without that reflection of inquiry which a careful answer would require; or he can answer without any such qualification. If the last course is taken then he must accept some responsibility for his answer being given carefully, or have accepted a relationship with the inquirer which requires him to exercise care as the circumstances require.

The judgement of Fantastic expressly cites the neighbour principle in Donoghue v Stevenson[18] and with further examination, there appear more material similarities than material differences in the facts. The ratio of Fantastic would appear to be binding on the material facts of the Vines’ case, with council appearing to owe the Vines a duty of care under the neighbour principle.

If council were to successfully argue a difference in the material facts between Fantastic and the Vines’ case, the precedent set in Thornton v Shoe Lane Parking provides then for a persuasive, if not binding, effect from Fantastic. Additionally Fantastic obiter observes that a reasonable man (or woman) would understand that advice given without any qualification of responsibility, would give rise to a duty of care.

VI Conclusion

It is possible the council may seek to argue the relevant decisions are not binding because they are per incuriam, outside the Queensland Court Hierarchy or contain facts not materially similar. However Fantastic does appear to offer binding ratio or at least highly persuasive obiter for an experienced judge in the Queensland Magistrates Court. There appears an established position in the courts for the application of the neighbour principle and a duty of care being in existence, when information is provided by one party that knows, or should know, will be relied and acted upon by another party.

The analysis of these cases indicates the court would have a generally positive view towards the case of the Vines, in an action against the council for a duty of care in the provision of their flood advice.

[1] Magistrates Court Act 1921 (Qld).

[2] Re Lines [1982] 2 WLR 1010.

[3] Fantastic Advertising Pty Ltd v ABZ Bank Ltd (2010) 2 CLR 122.

[4] R v Rowland [1971] SASR 392.

[5] Owen v All Assurance Ltd [2011] Qd R 200.

[6] Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163.

[7] Lyng Development Group Pty Ltd v Manningham City Council (2012) 1 VR 1.

[8] R v Parsons [1983] 2 VR 499.

[9] Ibid n3.

[10] Ibid n6.

[11] Donoghue v Stevenson [1932] AC 562.

[12] Per incuriam ‘through lack of care’ Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166.

[13] Ibid n5.

[14] [1974] 1 NSWLR 46.

[15] Ibid n8.

[16] Ibid.

[17] Ibid n3.

[18] Ibid n11.