QUESTION 1-
Bautista, Kernaghan & Kelloway LLP
Attorneys at Law
Haymitch Building, 126 Abernathy Street, Sydney NSW 2000
INTEROFFICE MEMORANDUM
TO : Gale Hawthorne
FROM : Coriolanus Snow
DATE : May 2016
SUBJECT : Ms Seneca Crane
Our client, Seneca Crane, is a highly successful singer. Her debut studio album, ‘Glimmer', was released in 2010, topped the local music charts for weeks and won three awards at the Australia Music Awards. She has since then released six studio albums, all of which have
been very successful on the commercial market. She is married to a famous movie actor and beloved by fans.
Yesterday, Seneca came to our law office and had a meeting with several of our firm's senior lawyers including myself. She narrated what happened to her last week. It was an accurate account of what was already in the news the past few days.
Seneca was 30 weeks pregnant with her third child and was having a leisurely walk at Hyde Park in Sydney with her two other children, when a heavily intoxicated man veered his sports car off the main road and ran into her. Seneca fortunately survived, but suffered a broken pelvis, and shattered bones in her thighs, spine and foot. When Seneca was brought to the hospital, the doctors told her the sad news that she had suffered a miscarriage due to the serious injuries she sustained from the accident. Seneca was overcome with grief. She and her also famous movie star partner have since known that their stillborn child was a girl and would have called her ‘Primrose'.
Our client was utterly devastated to find out that that the intoxicated man who caused her serious physical injuries and miscarriage will not be charged for the death of her unborn child. She further recounted that on her way to the meeting that she heard on the radio of
similar cases in New South Wales that have happened several years ago. The radio commentator also mentioned legislative proposals over the years that sought to address the issue of filing criminal charges against people who cause the death of unborn babies. This
news is just too overwhelming for Seneca and have prompted her to seek legal advice from our firm.
I have been tasked to handle this case. Please draft a two-part memorandum to prepare me for the upcoming meeting with Seneca Crane.
In Part 1, I need you to focus on relevant cases by providing me with the following:
1. The cases mentioned by Seneca, with a succinct summary of the facts and litigation history; and
2. Any other relevant cases where similar issues have arisen in order to inform me of the development of this area of law in Australia.
In Part 2, I want you to examine the relevant legislation by providing me with the following:
1. The relevant laws considered in the cases mentioned by Ms Seneca Crane;
2. The particular laws governing offences relating to grievous bodily harm that may be brought against an offender who causes the unlawful destruction of or harm to an unborn child; and
3. The legislative amendments introduced in relation to relevant laws involving the death of an unborn child, including who introduced the changes, and when and why they were introduced.
For both Parts 1 and 2, the focus should mainly be on New South Wales cases and legislation. However, relevant cases and laws from other jurisdictions could also be included.
There are other issues assigned to another associate to explore. You should focus on the ones I have listed above.
QUESTION 2-
On the same day that you received the above Interoffice Memorandum, the same law partner, Mr Coriolanus Snow, came to your office asking for assistance.
Mr Snow, aside from being a prominent international lawyer in your firm, is also a noted academic who holds a PhD in law and is an adjunct professor at the University of Wollongong. He is internationally renowned for his expertise in the law of the sea especially in matters involving territorial and maritime disputes in the Asia-Pacific region.
He explained to you that he has been invited to deliver a lecture to first year law students at the prestigious Everdeen University in Sydney. He is slightly anxious about this speaking engagement. He has, on occasion, taught courses in Contract Law, but is not an expert in this particular area of law. The organisers have asked him to speak on the topic of ‘A Critical Assessment of Cases involving Damages for Mental Distress in Contracts'.
This is a rare opportunity to impress Mr Snow who is an influential partner in your law firm, and accelerate your chances of promotion in the firm. Mr Snow hurriedly left your office after giving you the above details and mentioned that you could provide all that he needs
for his lecture in a letter addressed to him so that he could keep it in his files for future reference.
In your letter, you will need to provide relevant case law from the last decade (2005 to 2015) that relate to the general rule and exceptions to the award of damages for mental distress in contracts. He would also need analytical and high-quality, peer-reviewed journal articles on this topic, published within the last five years. He would appreciate a brief summary of the cases and journal articles you have researched. Mr Snow is notoriously busy and has specifically instructed that he only has the time and patience to read two (2) pages.
MEMORANDUM OF ADVICE
INTRODUCTION
1. This document is styled as a memorandum of advice. It encourages you to start thinking about the possible ways of formatting part one of your assignment. You should also consult the materials from week 10 classes on memoranda and letter writing.
2. Consider this ONE way of constructing a memorandum. Due to formatting restrictions and the nature of the task, your memorandum will be different from this document. You are reminded that you have creative licence in constructing both parts of the assignment. It should be your memorandum and letter.
RATIONALE & PLAN
3. This assignment assesses your ability to use diverse research methods and written formats. You are specifically to use the research and writing skills that you have developed in this subject to create a memorandum of advice and letter for use in a practical setting. You should demonstrate your ability to search for journal articles, legislation and cases as well as your ability to plan and create a clear and logical memorandum of advice and letter.
4. You are advised to develop this assignment in three stages:
a. Read and deconstruct the question. Brainstorm ideas and plan
b. Commence research
c. Create a memorandum of advice and letter. Review, proof and edit your assignment
DECONSTRUCT THE SCENARIO & QUESTIONS
5. The following questions should be considered:
a. What is the question asking you to do?
b. Are there steps you can take?
c. What kinds of materials will you need to consult?
d. Is there any extra information you require?
CREATE SEARCH STRATEGIES
6. Devise keywords for searching journals, cases and legislation (Recall what we did in class activities from earlier weeks if you are having trouble).
FACTORS TO CONSIDER IN WRITING THE ASSIGNMENT
7. You are advised to consider the research that you have located and how to use that information in creating a letter or memorandum tailored for your audience.
8. You should consider whether your memorandum of advice and letter are clear and concise.
9. Proof read your work and ask yourself the following questions:
a. Do you need to cut down on any extraneous information?
b. Is your letter well written?
c. Have you avoided unnecessary formality and legalese?
d. Are sentences concise and employ proper paragraph structure?
e. Have you considered organisational devices such as sub-headings and appropriate use of
dot-points?
10. In relation to paragraph 9, sub-paragraph (e), the appropriate use of dot-points entails that you use them sparingly. You are advised to only use them to introduce the basic points at the commencement of a new and significant point. You may wish to think of them as a mini-contents section - keep it to two to three short points. You will need to elaborate on any dot-points included.
11. Upon proof-reading and reviewing your assignment, consider the following questions:
a. Is there anything that you have missed?
b. Have you considered all appropriate angles?
c. Have you distinguished certain cases and legislation in your answer?
d. Does the memorandum logically flow (ie: rather than being disjointed, does it use topic and connecting sentences and clear, unambiguous language)?
e. Have you specified your research strategy (ie: how you found your research)?
f. Have you used the correct referencing technique (ie: AGLC)?
g. Have you included a bibliography?
ACCOUNT OF RESEARCH PROCESS
12. As noted in the question sheet, you will need to identify which databases were more helpful for certain aspects of the question. You should demonstrate that you have refined your search strategy to locate the most relevant results.
13. The purpose of this part of the assignment is to demonstrate correct research strategies have been employed based on classes in weeks 4, 6 and 7. It should be brief - aim for 4 - 6 lines.
14. It will be up to you decided how much information to include in this part of the assignment. You may want to use dashes or arrows to point out the next step in your research (eg: LexisNexis - Casebase Cases - Search Terms - Number of Results).
15. You do not have to provide a different explanation for every single search strategy undertaken. But you should include enough information to demonstrate that you have used ALL databases (ie: AGIS Plus Text, LexisNexis AU, Westlaw AU and Lawlex).
CONCLUSION
16. You are encouraged to think of this task as an exercise in developing your practical legal skills. In other words, this task represents some of the work that lawyers practice on a daily basis (ie: preparing advice for their bosses, barristers, judges and/or clients).
17. Ultimately, you should think about what a lawyer does and how your information should be tailored to the needs of a real-life task. Your main concern is to advice in relation to their different needs. Think about the purpose of the information you are presenting and how the lawyer could use this information.
2000 words.
8 refernces.