Legal Process Short Answer Test

This is a short answer test focusing on statutory interpretation within the context of a fictional legal scenario involving the protection of minkettes. The test comprises two questions. Question 1 requires the creation of a syllogism distilling the essence of an argument, while Question 2 involves analyzing a scenario concerning the interpretation of an act protecting minkettes and assessing criminal liability based on different approaches to statutory interpretation (literal, purposive, and ejusdem generis). The provided explanatory memoranda offer guidance on answering the questions, emphasizing the importance of succinct, structured legal arguments and engagement with key learning outcomes. The test assesses the student's ability to apply legal principles, solve legal problems, and demonstrate understanding of deductive reasoning and statutory interpretation.

LEGAL PROCESS 2016 SHORT ANSWER TEST
Semester 1
(worth 20% of your assessment for this unit)
ANSWERS ARE TO BE SUBMITTED ON THE LINK VIA THE ASSIGNMENTS AREA
ON BB – DUE 2355 20 October 2016
All references to facts, circumstances and entities in this paper are fictional and
any resemblance to any person or entity or circumstance is entirely
coincidental and unintended.
For convenience, the bare questions and the explanatory memoranda (which
must be read for guidance) have been separated. You should read them both
carefully.
ANSWER EACH QUESTION
Question 1
Create ONE syllogism that would accurately distil the essence of a supportable
argument in your major assignment.
The absolute word limit is 300 words.
This question is worth 7 marks.
Question 2
A small mammal known as a minkette used to be very commonplace in the
Blackstump National Park (let's call it “the Park”) as of the turn of the 20th
century. As the name suggests, a minkette is a mammal with a strong
resemblance to a mink, and whose coat is just as luxurious, only a minkette is
slightly smaller.
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The minkette was very prolific in the Park until hunted to the point of near
extinction in the early 1950s by hunters after it for its fur. Blackstump National
Park became associated with minkettes generally and, in the 1950s, there even
used to be an upmarket restaurant in the Park named The Blue Minkette.
Visitors would quite often go there for meals, dressed in minkette fur, in
keeping with the ‘minkette’ theme generally. The Blue Minkette was renowned
for being a glitzy, glamorous place where the rich and famous dined.
In desperation, due to concerns about the impact that hunting the minkette for
its fur, Parliament in the early 60s, passed an act with the express purpose of
protecting minkettes. The Act was called An Act for the Protection and
Preservation of Minkettes (let's call it “the Act”). Part of the Act included
provisions directed to the prohibition of wearing minkette fur within the
Blackstump National Park. This was to de-popularize the wearing of minkette
fur in the hope that this would, in turn, lead to a reduction in the popularity of
hunting minkettes for their fur. Separately, the Blue Minkette is forced to shut
down.
Relevant provisions of it were as follows:
An Act for the Protection and Preservation of Minkettes
……….
……….
….Wearing apparel in the Park is an offence, for which the penalty is $800.00.
…………
13. In this Act:
A. “Park” means the Blackstump National Park.
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B. “Apparel” means any shirt, coat, or sweater, made of the fur of the
minkette, or any other garment.
It is now 2016, and due to the success of the Act, the population of minkettes
in the Blackstump National Park has recovered significantly. The Blue Minkette
has reopened.
A party is held at the Blue Minkette recently. The following takes place:
Philippe is an ex minkette hunter, whose livelihood was destroyed by the
implementation of the Act. As a form of protest, he attends the party dressed
as a frontiersman wearing a coonskin cap of the type that Davy Crockett might
have worn1) made entirely of minkette fur. He also carries with him a rucksack,
which is best described as resembling the type of thing that an American
frontiersman might have used for carrying prey which had been shot as food
back to camp. It too is made entirely of minkette fur. To complete the image
of a frontiersman, he carries a rifle, modelled on the type that a frontiersmen
might have carried in the early 1800s.
Discuss the criminal liability in respect of Philippe’s wearing the coonskin cap
and the rucksack purely as a question of statutory/legislative interpretation,
and applying the methodology of conventional problem solving as has been
studied throughout the module. You must include in your answer a
consideration of: the literal approach, the purposive (common law and
statutory) approaches; and the maxim ejusdem generis – but also confine your
answer to such.
The absolute word limit for the question in total is 550 words excluding
footnotes.2
It is to be assumed (to the extent you consider relevant) that establishing the
purpose of the enactment, and the mischief it is intended to redress, will not
1 https://en.wikipedia.org/wiki/Coonskin_cap
2 The major assignment question contains guidance on the conventional, and proper, use of footnotes. These
remain applicable.
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cause practical difficulties and that these can be inferred from the facts stated
above.
This question is worth 13 marks.
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Explanatory memoranda:
Question 1
The learning outcomes for this question align with the fundamental
requirements in the unit that you confidently demonstrate your ability to
approach the solving of legal problems. This requires you to demonstrate your
ability to answer legal problem questions through a process of identification of
issues and application of the law to the facts. These learning outcomes are
here tested by your ability to assemble a succinct, structured, legal argument
in accordance with the directions herein.
You were directed in your major assignment to answer the question in I-R-A-C
form whereas you are here directed to create a syllogism. I-R-A-C is however
simply the legal form of a syllogism in the first place 3 and those expressions
can often be used interchangeably.
You are not required to adopt the same issues or arguments that you advanced
in the major assignment. In particular, there is no compulsion to adopt the
same issue (or the plural) or premises. Issue identification is very much part of
I-R-A-C reasoning and syllogism creation and it is hoped that you learnt from
any mistakes you might have made in the major assignment. The formal
parameters and constraints which applied to the major assignment (including
of course the direction concerning the scope of the legal and factual material)
obviously would continue to apply.
By way of an illustration of what your answer might look like, let us simply take
the hypothetical example of Victoria and Jennifer in tute 3. A satisfactory
answer if based on that question might have looked something like:
3 See eg footnote 1 to the Cadet Exercise (tute 2) where I quoted the author of that proposition one Schnee.
See also paragraph 119 of lecture summary 1.
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Did Jennifer owe a duty of care to Victoria?
It was held in Annets that a duty of care is owed by a person who gives an
assurance to the parent of a child to supervise and take care of the safety
of that child, to that parent, to ensure that the assurance is fulfilled.
There, the assurance in question was given by an employer to the parents
of an employee, who was young and inexperienced. The parents relied
upon that assurance to permit their son to be employed.
An assurance was given by Jennifer to Victoria to supervise Veronica and
to take care of her safety at a camp she was conducting. Although, unlike
the situation of James, Veronica was not a child, nor Jennifer’s employee,
the relationship the relationship between her and Victoria is analogous to
the relationship between the Annets and James. They were sisters, with
Jennifer usually taking care of Veronica due to her greater maturity. As a
result of Veronica’s inexperience in the activities to be undertaken,
Victoria relied on Jennifer’s assurance to permit Veronica to attend the
camp.
A duty of care was owed by Jennifer to Victoria.
194 words were consumed; this however is just an illustration so you will have
no confusion as to what is demanded of you. Your allowance is more generous
and an answer that expended a greater number of words may have been a
“better” one in the light of the learning outcomes.
As it is part of the learning outcomes that you are able to demonstrate your
capacity to assemble a succinct structured legal argument, it is not to the point
of the learning outcomes of this exercise to create an answer that will
unanimously be considered as entirely uncontroversial. Rather, the exercise
demands that you to test your skills at legal critical analysis by creating a
succinct argument - and that partly is why I have used the expression
“syllogism” rather than to use the vocabulary of I-R-A-C structure primarily for
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reasons of the mental imagery of brevity conjured up by the expression
“syllogism”.
No matter which argument is selected, some would argue that the major
premise is too widely/too narrowly/too vaguely stated or that certain facts
have been omitted etc. etc. Lawyers argue likewise all the time and that is
indeed the precise type of argument that lawyers often do conduct when
arguing about how a case should be determined.
By the same token, there are undoubtedly some fundamental, or key points. I
will be expecting you to recognise these, and then to give expression to these,
in your answer. No truly “good” (or even supportable) answer could
legitimately omit some of those pivotal aspects of the scenario. Listening to
the scenario will make it obvious what these key points are.
Actually recognising the pivotal points in a legal argument and then giving
expression to those key points and expressing them clearly and concisely is a
key legal skill. Answers that miss the primary point(s) of the assignment, no
matter how “original” or “smart” cannot expect to get good marks.
This replicates the reality of answering problem questions in an exam, and of
legal practice itself. Examiners WANT to see a student engage the primary
learning outcomes, and the questions that they write in exams are actually
designed with this objective in mind. A typical exam question will always
contain some key aspects which a student is expected to recognise and
discuss. Taking some point that does not engage the learning outcomes is very
tempting given that scenarios are seldom written in a way that every possible
angle is covered (to do so would be impossible) but it will not gain you many
marks.
Whether the question is one on contract, tort, criminal law, or something else,
an answer that smartly manages to avoid engaging the primary learning
outcomes, and which thereby does not advance the learning outcomes, will
seldom attract a good mark.
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In that light, let us continue our discussion of the tute 3 example.
By way of contrast and illustration, consider the following “syllogism”:
A duty of care arose in Annetts to give effect to an assurance in respect
of the safety of an employee because James was young and
inexperienced.
Veronica was not an employee but an adult person.
No duty of care arose on the part of Jennifer.
This is fundamentally flawed and would not be logically supportable on any
analysis (and an equivalent response in the major assignment would not have
attracted decent marks).
The fundamental flaw in the above example is that you have here selected a
single premise or aspect and created a major premise or generalisation around
it and then formed a conclusion by analysing that premise. It is admittedly a
patently obvious example but it has been chosen just to illustrate that sole
point as it is a flaw which is fairly common.
Whilst there are other syllogistic flaws, given the frequency of this one, I have
actually selected it for special mention. That is something that we discussed at
length several times and upon which I commented – again at length – in
various places which have been repeated many times in the course of the
semester.
Your ability to select the appropriate legal principles and which facts or
matters are to be contained in your minor premise respectively, and then to
express them succinctly yet accurately, also go to the heart of the learning
outcomes (to test your understanding of deductive reasoning and to express a
legal argument completely, but also succinctly).
Question 2
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Learning Objective: To test your knowledge of, and ability to apply,
fundamental principles of statutory interpretation in a process of legal
problem solving. Material covered up to, and including, lecture 10/tute 10
only will be tested and, by the same token, recognition will not be given for the
discussion of concepts beyond.
The maxim ejusdem generis is based on a narrow concept of context. Its
significance as a tool of interpretation has diminished as the courts have placed
greater emphasis on purpose and on much broader meanings of context
- see paragraph 12.3 text.
Your answer must incorporate a dedicated consideration of that proposition in
its application to this situation.
The factual scenario is not complete and it is always possible to find
evidentiary and other inconsistencies but the learning outcomes will not be
achieved if you did so. Please refrain. The exercise is purely of statutory or
legislative interpretation. Any argument needs to have some impact on the
validity of this learning outcomes - no more and no less!
In fact, if anything, t is actually easier, than not, to “find” a way of answering
this question that does not engage the learning outcomes as indicated. Simply
by way of example, I draw your attention to the second paragraph of the
sample answer to tute 9. That answer is one that, in another setting, might be
regarded as legitimate, but few marks would be awarded for such an answer if
it does not engage the learning outcomes of the exercise.
The use of a dictionary to ascertain the daily or everyday meaning of a word or
phrase is permissible. The use of a dictionary has to be in furtherance of a
legitimate learning outcome but not otherwise. It is not to be assumed that the
use of a dictionary is required, but you can assume that it is permissible (in
case there is any doubt). If you do use a dictionary, then ensure that the source
of the reference is clearly identified in a footnote. I have previously given you
guidance as to the use of footnotes – see eg the major assignment question.
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It is not otherwise intended (and it is undesirable) that you should perform any
research beyond the lessons in this unit in order to form a concluded view and
here again, they are limited to the material covered till lecture 10/tute 10 - but
merely that you should be able to recognise the fundamental principles of
statutory interpretation in attempting this question. As noted, there are
difficulties in assembling the principles of statutory interpretation as a
“coherent whole” – see for example the discussion of this expression in lecture
summaries 9 and 10 - and it is not to the point for you to explore those
principles in detail in order to provide a definitive answer by trying to reconcile
the entirety of the rules of statutory interpretation as a coherent whole. The
question does demand that you should give dedicated consideration to
interaction ejusdem generis; the various purposive approaches; and the literal
approach. Read the question carefully to know precisely what the parameters
of the question actually.
Finally, it is not desirable or necessary that you conduct further independent
research. There is adequate material in the lecture summaries, together with
the references therein to the various passages in your text and other material,
and tutes, to fully address this assignment and achieve the learning outcomes.
Crucially, the direction has been given that the question is to be answered as
one purely of statutory/legislative interpretation and as to legal problem
solving. Adequate guidance as to the latter has been given throughout the
semester as to what the format and structure the answer should take, both
generally and in the context of a question on statutory/legislative construction.
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