Research Articles Base: Law Research Paper

Example of a Law Research Paper

The Victorian Law Reform Commission in Defences to Homicide, Final Report (2004) has recommended that “the partial defence of provocation should be abolished” and that “the partial excuse of diminished responsibility should not be introduced in Victoria”. “Gender bias” in the operation of these “partial defences” was one of the reasons given for both of these recommendations. Do you think the “gender bias”argument justifies the Commission’s recommendations?   Introduction Provocation is one of the most common defence raise by the accused in domestic homicide cases.  When juries accept the defence of provocation, it can return a verdict of manslaughter instead of murder.  The trend in recent domestic homicide cases[1] has reflected juries are less sympathetic towards the accused and likely to reject the provocation as partial defence.  Likewise the Victorian Government has also taken a stringent approach towards those defendants who invoked provocation as a tool to mitigate their sentence. As discussed in the Final Report of The Victoria Law Reform Commission in Defence to Homicide[2], they recommended abolishing the partial defence of provocation and gender bias is one of the main reasons that drive the government’s recommendation. Subjective or objective test? The modern theme of provocation is generally justified on the basis that the accused could not properly control his/her behaviour due to the aggravation evolved by the victim, and that an ordinary person might react similar in the position of the accused.  In order to rely on the provocation as defence, three main requirements[3] must be established.  Firstly, the act of the accused must be the result of the loss of self control.  Therefore, it must be assessed by reference to relevant characteristic of the accused.    Men’s World The loss of self-control under the defence of provocation may cause by the combination of fear and anger, anger is usually regraded as the primary characteristic of provocation[4].  In last few decades, the defence of provocation in majority of domestic homicide cases[5] that are used by men is that they were provoked by their partners’ suspected or actual infidelity, and that the women leaving or attempting to leave them.  This profoundly helps men to apply the test of provocation easier than women.  Therefore, people argued that the provocation defence is framed to deal with male and hence it is gender bias and unjust.[6]    Women’s world Women in situations of domestic homicide continued to be denied access to the defence of provocation[7].  In order to raise such a defence successfully, it is essential to show that the killing was a result of loss of self control[8].  For instance, in R v R(1981)[9], the accused has killed her husband cold-bloodedly while he was falling asleep. Prima facie, it is hard for the accused to establish that her killing arise due to her loss of self-control, therefore it is very likely that she will be excluded from the defence of provocation.   Although many people argued that male are more likely to raise the defence of provocation, according to the NSW Judicial Commission[10], it demonstrates that women were successful in 100% of cases in which provocation was argued.  Whereas, the acceptance rate for male is only 60%.  The amendments of Crimes Act 1900(NSW)[11] removed the requirement of suddenness.  As a result, the provoking conduct of the deceased can have occurred immediately before the act or at any previous time.  This has been confirmed by Gleeson CJ in R v Muy Ky Chhay(1994)[12] where he states that a specific triggering incident is no longer necessary.  Unlike the demonstration from Masciantonio v The Queen (1995)[13], Mason J in Van Den Heok v The Queen (1986)[14] states that the loss of self-control may be produced by fear or panic rather than anger.  Since majority of the women who kill their partners are victims of domestic violence[15], their fear and panic of domestic violence subsequently cause the loss of self-control.    To abolish or not to abolish, that is the question While death penalty is no long exist in Australia, a more flexible sentencing regime for murder has been developed. Scholars argued that provocation as a defence allows many men to be excused for killing their female partners out of jealousy or after a confession of adultery. Contrary, cases have also proven that women in domestic homicide can also successfully invoked provocation as defence[16].    Some people recommended the abolition of defence of provocation because they believe that it operates to excuse males’ behaviour.  However, this recommendation could be rebutted by the decision of Stingel(1990)[17].  In this case, although the accused is male, gender has been ignored in applying the objective ‘ordinary person’ test to the question of loss of self-control[18].  This demonstrates that the aim of the defence of provocation is not to condone that person’s actions, but recognises that certain provoked killings, committed as a result of a loss of self-control which does not fall within the worst category of unlawful killing and should be viewed by the law with a degree of compassion[19]. Unlike the comment made by Gibbs J in Moffa v The Queen(1997)[20], Mason J in the same case believed that the sentence of the accused should be mitigated because the actions and statements made by the defendant’s wife is so provocative that an ordinary person may also have lose self-control in that circumstances.  Therefore, defence of provocation is incredibly important and hence it should be retain.      Conclusion As discussed in this paper, whether provocation as a defence can be raised successfully, circumstantial evidence is very vital for both men and women.  As a result, both men and women can take advantage from the defence of provocation.  Therefore, it is important to keep the distinction between unprovoked and provoked killings.  Thus, provocation is an important defence for both men and women and it should not be abolished.                           BIBLIOGRAPHY BOOK & Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (3rd edition, Federation Press, 2001)   & Judicial Commission of New South Wales Sentenced Homicides in New South Wales 1990-1993: A Legal and Sociological Study, 1995   & Z Rathus Rougher: Women and Criminal Justice System (2nd ed, Women’s Health Policy Unit, Queensland Health) at 91   &  New South Wales Law Reform Comission: Report 83: Partial defences to murder: provocation and infanticide, 1997   CASE & Davis (1998) (NSWCCA)   & Masciantonio v The Queen (1995) 183 CLR 58   & Moffa v The Queen(1977)[1]138 CLR 601   &    Osland v The Queen (1998) (1998) 197 CLR 316   & The Queen v R (1981) 28 SASR 321 
12.0pt">  & R v Allwood (1975)[1] WL 150575 (VSC)   & R v Muy Ky Chhay(1994) 72 A Crim R1 
12.0pt">  & R v R (1981) 28 SASR 321   &  Stingel(1990) 171 CLR 312 (HC)   & Van Den Heok v The Queen (1986) 161 CLR 158   INTERNET & VLRC, Defences to Homicide: Final Report, 2004 <http://www.lawreform.vic.gov.au/CA256902000FE154/Lookup/Homicide_Final_Report/$file/FinalReport.pdf>   & Erin Cameron, “Woman’s place is in the struggle: Australia’s ‘honour’ killing”, Green Left Weekly, January 26, 2005. 
12.0pt">< http://www.greenleft.org.au/back/2005/612/612p8b.htm > 
12.0pt">  & Simon Johnason, ‘The Age’ news and information site in Victoria, 13 December, 2004 < http://www.theage.com.au/news/Opinion/In-defence-of-the-defence-of-provocation/2004/12/12/1102786949654.html>   JOURNAL & Helen Brown, ‘Provocation as a defence to murder: to abolish or to reform?’, (1999) 12 Australian Feminist Law Jounal 137   LEGISLATION & Crimes Act1900 (NSW)   & Crimes Act 1958 (Vic)         [1] Osland v The Queen (1998) 197 CLR 316 is one of the example of the rent cases which juries are less sympathetic towards the accused.  In this paper, it will demonstrate more cases to support this argument. [2] VLRC, Defences to Homicide: Final Report, 2004. [3] Crimes Act1900 (NSW) s 23(2),  since the legislation of NSW and Victoria are very similar. R v Lees [1999] NSWCCA 301 (29 September 1999) demonstrates the subject and objective test of the defence of provocation.. [4] Masciantonio v The Queen (1995) 183 CLR 58. [5] R v Allwood (1975)[5] WL 150575 (VSC) and Moffa v The Queen(1977)[5]138 CLR 601. [6] VLRC, Defences to Homicide: Final Report, 2004 p.27. [7] Law Reform Commission of Victoria, Homicide (Report 40, 1991) at paras 164-169 [8] This has been demonstrated previously in the paper (in para 3). [9] R v R (1981) 28 SASR 321. [10] Judicial Commission of New South Wales Sentenced Homicides in New South Wales 1990-1993: A Legal and Sociological Study, 1995 [11] Crimes Act 1900 (NSW), s23(3)(b) [12] (1994) 72 A Crim R1 at 13-14 [13] (1995) 183 CLR 58 [14] (1986) 161 CLR 158 at 168 [15] Victoria Law Reform Commission Defences to Homicide: Final Report p.29. [16] Women were successful in 100% of cases in which provocation was argued (demonstrated in para 9). [17] (1990) 171 CLR 312 (HC) [18] Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (3rd edition, Federation Press, 2001) [19] New South Wales Law Reform Comission: Report 83: Partial defences to murder: provocation and infanticide, 1997 [20] (1997) 138 CLR 601 Credit:ivythesis.typepad.com

Example of a Law Research Paper

The Victorian Law Reform Commission in Defences to Homicide, Final Report (2004) has recommended that “the partial defence of provocation ...

Glorious Revolution

The purpose of this paper is to discuss the effects of events such as the Glorious Revolution and Law Affairs in the public and private debt situation of England and France. It will attempt to explain how these importance events affected the market for private and public debt in the two country’s economy.             The Glorious revolution was a significant event in England because it created a social, political and economic condition favorable to trade, investment and lending. First of all, this event diminished the power of the Crown and the monarch. It became illegal to levy taxes and other payments to the people without the authorization of the parliament. Parliament in fact placed a restriction on the ability of the Crown to expropriate properties and this made property rights more secure. Because the interference of the Crown was negligible, Parliament was able to pass many pieces of legislations that addressed the financing of infrastructure of property rights in land. Property rights in public debt became safer and assured when restrictions and legal obstacles were placed against the power of the monarch.             In France, certain factors and political aspects negatively affected the market for private and public debt. This conditions stems from the very nature of the market for private and public debt in France. In this country there are two kinds of debts, the rentes which were perpetual annuities and obligations which are classified as obligatory bills. Small scale and large scale lenders were adamant in lending money to borrowers because of the high probability of default on the part of the borrower. Aside from these, there was also an issue with regards to the collateral that will be presented by the borrower to the lender. Collateral would refer to buildings, expensive jewelries and tracts of land. The lender cannot really be sure if the properly has not been previously mortgaged, if it is, he cannot claim his money from the borrower of he will be drawn into a long and expensive legal battle with the other lender who received the mortgage. Because of these vital conditions before lending, most loans went to wealthy nobles and rich individuals.             The state also complicated the problem on borrowing and lending. It frequently changed the value of its coin and required that all money will be reminted. The government also had a power to manipulate the value of the currency to erase the debts that it incurred in financing its wars and the crown also has the power to stop its payment of loans. These practices lead to the wholesale devaluation of the currency ruining many lenders. Lenders and financiers were also subjected to a chamber de justice that would strip them of their properties and rights to pursue their claims against the crown and other borrowers.             Another event that adversely affected the market for public and private debt in France is the programs implemented by John Law. Law tried to solve the financial difficulty of France and to retool the fiscal stability of the crown by issuing regulations that ultimately backfired. John Law first issued bank notes from his Banque Royale as a legal tender and because of these massive and widespread devaluation of the paper money was experienced by lenders and borrowers. This proved to be an advantageous position to a simple borrower because he can now pay his large debt because of the devaluation while a lender will suffer greatly because he will now receive a small portion of what he loaned. Since this effect was clearly disadvantageous to the lenders, many of them were adamant and wary in granting loans to borrowers thus seriously affecting the public and private debt markets.   Credit:ivythesis.typepad.com

Glorious Revolution

The purpose of this paper is to discuss the effects of events such as the Glorious Revolution and Law Affairs in the public an...

Sample Law Case Studies

o       Was Keith correct in his decision not to call Amanda and Tom to give evidence?   Keith’s decision not to call on the testimony of Amanda and Tom was incorrect. This might be based on the fact that both of the said individuals did not see the actual occurrence of the accident. This might have given Keith the impression that the account of the two individuals may well be inadmissible in court considering that their accounts may be deemed as hearsay. The rule aligned with hearsay is administered by the common law, and is cause to undergo a variety of very technical exceptions. There are a couple of important grounds for the rule. The statement presented into evidence by hearsay is not steadfast evidence for the reason that the individual who made it would unable to be cross-examined. For the reason that evidence presented by hearsay similarly makes it awfully complicated for the soundness of the statement to be disputed by the conflicting party, it can bring about unfairness.   o       What should he have done?   Although the Committal Hearing was done after the acquisition of the said statements, Keith should have submitted the said accounts of the witnesses and allow the presiding authorities to deem whether the statements of Amanda and Tom would be admissible in court. By not doing so, the court may find Keith of excluding the “truth” regarding his client, Philip. Specifically, testimony on the part of Amanda reveals that Philip was on a rush when she saw him. This may provide the impression that Philip was not “standing on the side of the road and looked both ways before crossing.” However, Keith could have easily rebutted by merely claiming that there was no actual evidence that his client failed to do what he claimed he did because a witness saw him running prior to the accident. It is also established in the account of the witness that she failed to see the actual accident and failed to see what the plaintiff was actually doing prior to the accident because she lost sight of him. In looking to the said discussion, Keith should have forwarded the said evidence in court. It is part of his duty as a prosecutor, to call all the witnesses. The provision of the statements subsequent to the Committal Hearing is a minor detail. Keith could have asked the appropriate individuals, specifically the judge and the opposing party, of the requirement and materiality of the testimony of Amanda and Tom to provide a clear picture of the actual events.      o       Was Robert correct in his decision not to call Mathew to give evidence?   Robert’s decision to the calling of Mathew for his testimony was wrong. Particularly, Robert failed one of his duties to the court as a practitioner of the law by withholding information from the court. This may well be an indication that the failure of Robert to provide the testimony of Mathew, regardless of its materiality or immateriality on the court, as an intention to mislead the court of the proper assessment of the case. The testimony of Mathew may have established the reason and the actuality that William was indeed driving very fast as a result of his disposition. This actual disposition may be seen by the courts as an actual practice of “Driving in a Manner Dangerous to the Public.” Withholding such evidence from the courts has compromised the capacity of the court to effectively and efficiently render an appropriate ruling on the said case.     o       Are there any distinctions between the Prosecutor’s responsibility and the Defence’s responsibility when calling witnesses?   Essentially, there are no particular distinctions regarding the responsibilities of the prosecutor or defence with regards to the calling of the witness. Both sides of the case are compelled by the courts to comply and be vigilant in upholding the rules of court whenever they are placed in trial. In the language of the Legal Profession Act of 1987, both are still recognized as “practitioners” that have a particular duty on their client and to the court. Specifically, these duties are outlined rules 17-24 of the Act. In taking this into account, the testimony of witnesses is regarded as evidence. Therefore, the calling of witnesses is similarly bound by the legal rules of evidence of the court. However, in the context of the Legal Profession Act of 1987, the prosecutor has a more specified set of duties that should be considered in handling cases and specifically calling witnesses. In part (a) of A66B, it is stated that the prosecutor “must call as part of the prosecution’s case all witness whose testimony is admissible and necessary for the presentation of the whole picture.” Thus, with this passage, it is apparent that the prosecutor has the responsibility of presenting the entire picture that would reveal the sequence of events that would establish a set of data that would aid the court in arriving at a sound judgment.          o       Was Robert correct in not informing Keith or the Court about the recent decision?   Robert was wrong for not informing Keith or the court of the said decision regarding the mens rea case that he found in the internet. Even though Robert slightly indicated the existence of such case in the proceedings, he did it in such a way that it tried to mislead the court. (A.21) Moreover, he failed to rectify this mistake by engaging in actions that would correct the said misleading action. (A.22) Similarly, based on the Legal Profession Act of 1987, Robert is bound by A.25 to inform the court of any binding authority, precedent, or past cases held by “the Full Court of the Federal Court of Australia, a Court of Appeal of a Supreme Court or a Full Court of a Supreme Court.”      Credit:ivythesis.typepad.com

Sample Law Case Studies

o Was Keith correct in his decision not to call Amanda and Tom to give evidence? Keith’s decision not to call on the t...

Research Assignment

Introduction In the corporate law context, a structure of entitlement rules defines the respective rights of shareholders and the various non shareholder corporate constituencies. These rules confer various powers or immunities on their beneficiaries. Some of these entitlement rules are rules of corporate law, others are not. An example of the former is shareholders’ statutory voting rights. Corporate law statutes confer voting rights on corporate shareholders as to a range of specified matters. The effect is to deny participation in control through the voting process to other actors within the corporate enterprise and to interested members of the general public. Statutes also limit shareholders’ liability to corporate creditors to their capital contributions, leaving creditors to bear the risk of corporate insolvency. Common law fiduciary duty doctrine likewise plays an important role in structuring the legal relationships among shareholders and non shareholders.[1] Management, having complied with the corporation’s contractual and other legal obligations, must then seek to maximize shareholder wealth, rather than, for example, seeking to share gains among shareholders and certain non shareholder constituencies. An example of entitlement rules that are not found within corporate law is the common law employment-at-will doctrine. This doctrine allows corporate management broad freedom to discharge employees whenever it is deemed to be in the shareholders’ financial interests to do so. All of these legal rules define important attributes of one’s status as a shareholder or non shareholder, and thereby structure the relationship among shareholders and non shareholders in important ways. [2]               The entitlements specifying the relations among shareholders and non shareholders are mostly default rules. They define rights that can be modified by contract. This point is familiar to corporate law commentators. Thus, for example, shareholders can agree to give up their limited liability and can also extend voting rights to groups other than common shareholders. Acting through corporate management, they can also agree to long-term employment contracts that override the at-will doctrine. Corporate law contractarians talk about the corporation as a product of consent by the various corporate constituencies to the terms of their contracts with each other.  Thus, for example, if voting rights, limited liability, fiduciary duties, and the employment-at-will doctrine are, as default rules, merely terms of a standard-form contract, creditors or employees who do not bargain for their modification can be said to have agreed to these attributes of their relationship with the shareholders as part of their agreement to extend credit or to enter into an employment relationship. However, thinking about intra corporate relations in this way should not blind one to the fact that the bias of the default rule in question was not itself the result of a bargain between the parties. By providing default terms, corporate law and other legal doctrines determine the entitlement structure that will obtain unless that structure is altered by affirmative conduct. [3] Corporate law covers different aspects of a business and it makes sure that rules in the business will be followed well. The law is something used by not only by people in a state but it is implemented by people in an organization.   Laws are means for organizations to organize and restrict the actions of their employees; it is also used so that the organization will act according to its goal or objective. Laws prevent disunity and chaos in the organization.  Without laws people in the organization will be encouraged to do things their own way and they will act on their individual beliefs. Without law the goals of the individual will the ones that will only be satisfied and this goal may be to serve one’s personal interest. The paper will discuss about the case about the company Romano LTD and the situation where different laws were used to solve a problem.   Facts of the case The case is about the company Romano Ltd. This company sells antique replica furniture. The company wants to expand its operations by manufacturing country style timber floorings or by manufacturing Scottish tartan looking rugs and carpets. Before choosing what expansion path they will go to, the company underwent feasibility and marketability research on the two expansion paths.  After the result of the research was completed the board decided to meet and talk about the expansion path they will choose.  During the meeting one employee named  was not keen on the choices for the company. That employee chose to do other things while the meeting is undergoing. At the end of the meeting  had a speech in favor of the carpet and rugs project. The board agreed with her and it led to the board going for the Scottish tartan looking rugs and carpets project. The problem with that move is there was little research done regarding the rugs and carpet project. After some time  left the company and worked for another company that employs her brother. used all the information she has from the previous company to start the country style timber floorings project for the new company.   Company Companies are entities that engage in different businesses they believe that can provide them with opportunities for profits and opportunities for satisfying customer needs. Companies are those organizations formed for purposes of creating a product or providing service that can be offered to the general public. A Company’s main goal is to gain profit by providing a product and service that will be liked by the general public. A company has different kinds of ownership; it may be owned by one person or a single proprietorship, a company can also be a partnership, moreover a company can also be a corporation. Companies like a state have its laws that are derived as the company is formed. Companies have a structured organization that gives the employees ideas on their duties responsibilities and positions. It keeps the employees in line and it is a measure of the amount of salary they deserve. There are different positions in a company; one position in the company is a director. Directors Directors are individuals that manage the company. The directors make sure that the overall day to day activities of the company is followed. They provide direction for the company by guiding the employees in doing the best for the company. Directors are included in the group that provides a link to management and the employees. Together with managers and supervisors they are the ones used by the management as a bridge with the employees.   Duties of Directors The law has traditionally imposed fiduciary duties on directors on the basis of the conventional model of the corporate structure in which the directors manage the company. It may be more in line with the typical present-day management structure of larger companies to say that senior managers, not all of whom are directors, manage the company whilst the board, comprising some senior managers and some non-executive directors who are not involved in the daily operations, devises strategy, decides upon major transactions and supervises management. Where senior managers run the daily operations of a company under the supervision of the board, the relationship between them and the company may be one of trust and confidence giving rise to fiduciary duties. The fiduciary duties of senior managers who are not directors have not been litigated to the same extent as the fiduciary duties of directors, although it has been recognized in a number of cases that senior managers of companies can owe fiduciary duties. [4] Directors have various purposes depending on their role in the company. The duties of directors are given to them so that they can provide the proper service to a company.   Employees Employees are the members of the organization that act on making sure that the company provides the best product to its clients. They are the ones responsible for providing service to clients. Directors, Managers and Supervisors are the ones that decide on the strategy to use so that customer satisfaction can be given while Employees are the ones that make sure that customer satisfaction is felt by the clients.   Duties of employees             One aspect of employer rights is the power of the employer to make unilateral business related decisions that affect employees. This right can be summarized under the heading of entrepreneurial control. Another aspect of employer rights involves the duties owed by the employee to the employer. In addition to some of the special duties of an employee, there are a number of identified general duties owed by all employees. An employee owes a number of duties to the employer as his or her side of the employment contract. These duties may be implied, written or in most cases expressed, but most of them are implied by courts and arbitrators because there is no written contract. If the employee breaches the obligations, the employer may have just cause to take adverse personnel action or other actions against the employee.[5] Where the employer has just cause for the personnel action, the just cause reason will be a valid defense in either an at will or in a fixed term contract discharge dispute. The different implied terms to the employment contract apply to both individual contracts and collective bargaining contracts of employment. They are another example of an area where individual and collective contracts share many common characteristics. These implied duties are an obligation on the employee and a benefit to the employer. In other words, the employer has a right to insist on them without having to negotiate. This gives them the characteristic of an employer right. [6]               Viewed as a matter of contractual mutuality, there is no similar length list of implied duties that is commonly owed by the employer to the employee. This again makes the essentially one sided employee duties look like fundamental employer rights. The employee’s general duties may add little to the employer rights where the employer already has the authority to arbitrarily discharge the employee, as under an at will contract. However, where the employer seeks to justify a discharge on the basis of cause, both the general duties owed to the employer and the special characteristics of the job should be given close scrutiny. One of the most basic of the general duties is regular attendance at the workplace. Equally basic is the obligation that the employee performs the assigned tasks. The employee should arrive at work on time, not be tardy and properly perform.[7]               These employee duties complement the employer’s rights to make decisions on product choice, promotion of the product, and economic profitability mentioned earlier. A tardy or absent employee interferes with productivity. The general rule on absences is such that even if an absent employee takes employer approved absences, the employee has still been held subject to discharge. Clearly, unearned absences can result in discharge. Stealing from the employer is obviously a major offense. Fights among the employees cannot be tolerated, but exceptions may be made for moments of isolated anger.[8]               Following orders given by the employer is a basic requirement. Where an assignment or procedure is not carried out, the employee may be under an obligation to report that fact to the employer and to report the reason why it was not carried out. A plaintiff employee who was discharged for not following orders may have had an honest belief in the validity of the employee’s reasons for disobeying, but that belief will not aid the employee. The employee may believe that a work order is foolish, but that belief will not help the disobedient employee either. The employee is under a general duty to first obey orders and later grieve the matter, if a grievance mechanism is available. The self-help technique of refusal is a dangerous decision. [9] The duties of an employee states that he/she should have absolute loyalty to his/her employer. In the case  violated this duty after going to the other company and divulging important information to the new company.   State the issue of Question 1A The first question is looking for the duties that have been breached by  under the corporation’s act 2001 and at common law.   State the law Section 180 Section 180 of the Corporation’s act 2001 states that a director or other officer of an corporation must exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise if they were a director or officer of an corporation in the corporation’s circumstance and occupied the office held by and had the same responsibilities within the corporation as the director or officer.   Section 181 Section 181 states that that a director or other officer of an corporation must exercise their powers and discharge their duties in good faith in the best interests interest of the corporation and for a proper purpose. Section 182 Section 182 states that a director, secretary, other officer or employee of a corporation must not improperly use their position to gain an advantage for themselves or someone else or cause detriment to the corporation.   Section 183 Section 183 states that a person who obtains information because they are or have been a director or other officer or employee of a corporation must not improperly use the information to gain advantage for themselves or someone else or cause detriment to the corporation.   Section 184 Section 184 states that a director or other officer of a corporation commits an offense if they are reckless or are intentionally dishonest and fail to exercise their powers and discharge their duties in good faith in the best interests of the corporation or for a proper purpose.   Section 185 Section 185 states that Sections 180 to 184 have effect in addition to and not it derogation of any rule of law relating to the duty or liability of a person because of their office or employment in relation to a corporation and do not prevent the commencement of civil proceedings for a breach of a duty or in respect of a liability referred to the first paragraph of this section.  Application   violated section 184 of Corporations act. The said act stated that any official or employee of an organization should take care of any information and position given to them.  The said act mentioned that a person who is reckless and intentionally dishonest will be charged criminally for his/her actions.  The said act stated that directors, officers or employees of a corporation must not fail to exercise their powers or discharge their duties in good faith and for a proper purpose. Even if a person is not anymore an employee of the company section 184 mentioned that the person must not use the information dishonestly. It stated that people previously employed by a corporation must not use the information they have to gain advantage for themselves or other people and they must not use any results of their action for the benefit of themselves and others and for an advantage or disadvantage to their former company.    had used the information she already has for her new company to prosper and create a better position in its industry. The actions by  not only benefited her and the new company but it created disadvantage to the former corporation. The trust imparted to  while she was working with the old company was violated and her action does not show good faith.  was also reckless in divulging important information that the corporation entrusted to her. The offenses of  were criminal in nature and deserve the proper kind of punishment.  The actions of  were unethical and should be seen by the new company as something she might do to them.  State the issue of Question 1b Question 1b stated that a number of shareholders are threatening to initiate a statutory derivative action against the board of directors of Romano Ltd for failing to proceed with the timber flooring project.  This part intends to discover whether or not the shareholders can pursue their threat.   State the law The corporate law economic reform program act 1999 had a introduced about statutory derivative action. It mentioned that a statutory derivative action enables an individual shareholder to bring an action on behalf of a company for a wrong done to a company, where the company is unable or unwilling to bring the action itself.   Application As mentioned by the corporate law economic reform program act 1999’s definition of statutory derivative action, the shareholders have all the right to a statutory derivative action against the board of directors of Romano Ltd for failing to proceed with the timber flooring project. As a way to protect the interest of the company the shareholders have the right to initiate that kind of action.   Conclusion The duties of an employee states that he/she should have absolute loyalty to his/her employer. In the case  violated this duty after going to the other company and divulging important information to the new company. Corporate law covers different aspects of a business and it makes sure that rules in the business will be followed well. had used the information she already has for her new company to prosper and create a better position in its industry. The actions by  not only benefited her and the new company but it created disadvantage to the former corporation.   Credit:ivythesis.typepad.com

Research Assignment

Introduction In the corporate law context, a structure of entitlement rules defines the respective rights of shareholders and the variou...

Particular Common Law

This paper will try to discuss and state a specific aspect of common law which is the duty of care. It will try to assess and to view the different features and characteristics of the duty of care and how it is applied to a particular situation.  It will try to identify and emphasize the different viewpoint that this particular common law advocates.             The situation and facts of the case are these. Robert had been asked by his next door neighbor, Edgar, to help clear Edgar’s garden. This work required him to use dangerous equipment such as a chainsaw and powerful chemical weed killers. Robert was working in the garden clearing a patch of ground that had become a wilderness. He told Edgar’s 6-year-old son, James, to keep away from the area. Unfortunately, whilst Robert was having his lunch, James went into the area that had been treated with weed killer and fell over a pile of rubbish, landing with one hand in the weed killer. James developed severe burns to his hand. Edgar was furious about what ad happened to his son and stormed into the garden to have words with Robert. Robert was using the chainsaw at the time and did not hear Edgar approaching and Edgar tapped Robert on the shoulder and Robert swung round in surprise, catching Edgar with the chainsaw and cutting off Edgar’s hand.             The vital questions that must be asked in this case is, does Robert owe and breached a duty of care to Edgar and the legal implications surrounding the damages that was sustained by Edgar. Before explaining and answering these questions a proper rationalization on the rule of law must be made.             In tort law, a duty of care is a legal obligation imposed on an individual requiring that they exercise a reasonable standard of care while performing any acts that could foreseeable harm others. For an action in negligence, there must be an identified duty of care in law. Duty of care may be considered a formalization of the implicit responsibilities held by an individual towards another individual within society. It is not a requirement that a duty of care be defined by law, but it will often evolve through the jurisprudence of common law. Individuals who are considered to be professionals within society are often held to a higher standard of care than those who are not. Engineers and doctors will be held to reasonable standards for members of their profession, rather than those of the general public in cases related to their fields. Breach of duty of care, if resulting in an injury, may subject an individual to liability in tort. Duty of care is an important prerequisite in the tort of negligence, as the duty of care must exist and must have been breached for the tort to occur. Important cases have been tried and decided by different levels of the judiciary that makes the exact definition and the legal explanation regarding the subject of duty of care. These decisions and cases are tried to further define and to characterize the aspect and the nature of the phrase duty of care. These decisions are also significant since they provide the jurisprudence and the outline for other cases that touches the same topic which is duty of care. Among the cases that full explain and central to the idea of duty of care is the case titled Donoghue v Stevenson. DUTY OF CARE Donoghue v. Stevenson is a famous House of Lords case in the area of delict and tort law. From this case springs the core principle of the modern law of negligence and duty of care. It establishes a principle that has guided the courts to this day, and places the notion of a duty of care at the heart of the law of negligence.  A duty of care is a term that the courts will use to determine whether the defendant is liable. It is only one factor that the courts will consider, but it will be the first question that the courts will ask. The case is perhaps most well known for the speech of Lord Atkin and his ‘Neighbor’s Principle’ where he applied Luke 10 of the Bible to law. The practical effect of this case was to provide individuals with a remedy against suppliers of consumer products, even if they did not have a contract with them. The case, brought under Scots law, did not technically bind England, but nonetheless, due to the commonality between the Scots civil system and the English common law, the principle has since been adopted across the United Kingdom and elsewhere in the world.  In 1990 in England the House of Lords restated the ‘Neighbor Principle’ of Lord Atkins to take account of public policy In this case, May Donoghue alleged that she drank some of the contents of a bottle of ginger beer manufactured by the respondent. When a friend of Ms. Donoghue poured the content of the bottle, they saw a rotting snail on their beer. As a result, May Donoghue allegedly suffered shock and severe gastroenteritis. Because of her injuries and the pain that she suffered she sued the respondent. In Donoghue v. Stevenson Lord Atkins stated the now famous “Neighbor Principle” with regards to the proper interpretation of the duty of case. Lord Atkin’s statement about the foreseeability of the effects of one’s acts on one’s neighbours is central to the existence of a duty of care in the law of tort/delict, especially on the then developing nascent tort/delict of negligence. In this judgement he formulates what is commonly known as the “neighbour principle”. In this legal principle he declared that; …there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. … The rule that you are to love your neighbor becomes in law you must not injure your neighbor; and the lawyer’s question: Who is my neighbor? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who, then, in law, is my neighbor? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question. In Donoghue v. Stevenson Lord Macmillan meanwhile asserted that ‘the categories of negligence are never closed’, in the sense that the courts possess the power to create new duty situations expanding the area of liability.  In this case, Lord Atkin’s formulation of the ‘neighbor principle’ was not qualified by reference to particular kinds of loss nor to the distinction between acts and omissions. Subsequent courts however, interpreting the Donoghue opinions, soon came to the conclusion that their scope was limited to personal injury and damage to property.  The broad ‘neighbor principle’ was treated as an obiter dictum, with the ratio limited to the particular case of the duty owed by a manufacturer to an ultimate consumer. Lord Oliver further explained, that the discussion of duty of care should be located by reference to specific areas of liability such as negligent misstatements, the distinction between acts and omissions, liability for the acts of third parties, and the exercise of statutory duties and powers which represent the outermost boundaries of liability. After Donoghue v. Stevenson, the law recognized a general duty of care protecting the personal safety and health and tangible property interests of an individual. Liability for physical harm caused by negligent misstatements is now well established as part of the Donoghue duty. The general duty may, however, be qualified in relation to certain types of plaintiff, such as trespassers, or may be specially extended to cover deserving claims such as those of rescuers. Certain defendants, such as public authorities and others serving the collective interest may benefit from a qualified immunity in respect of physical harm. The limited nature of liability for omissions also affects the protection accorded to physical interests.  Finally, it must be remembered that, despite the existence of a general duty of care, claims for compensation for physical loss may be limited by other considerations such as remoteness and causation as well as by the manner in which damages for loss are calculated in different cases.  REMOTENESS OF DAMAGES                         The purpose of the rules about remote damages is to prevent somebody who is in breach of a duty, be it delictual or contractual, to be held liable indefinitely and without any limitations for any and all harmful consequences that arise from his breach of duty.  Before looking in detail at the theoretical approach to remote damages as a method of seeing this, it seems useful to point out a few related issues to better understand the concept. The issue of remote damages can arise not only in the context of delictual liability, but anywhere in the legal system where a liability for damages can arise. Besides in delict this would be in contract. In both delict and contract generally the pursuer must not only show that the defender’s action caused the damages he suffered, but in addition he must also prove that these damages are not too remote. However, because of the different nature of contractual and delictual duties, the rules about the remoteness of damages are different in delict and contract. Basically, there are different tests in the law of delict and the law of contract in order to determine the sufficient remoteness of the damages in question. In this portion only the rules about remote damages in delict will be discussed.                 In order to receive damages, the pursuer has to show the chain of causation. This consists of two individual steps: There has to be a causal connection between the defender’s original conduct and the injury suffered as a consequence thereof, as well as between the caused harm and the losses arising out of it.  In each of those two steps the question of remoteness can arise. In addition to the factual causation, the necessary proximity between original conduct and injury respectively injury and loss has to be established.             If an injury is too remote to be legally connected with the defendant’s original conduct, as a consequence the defendant cannot be held liable at all. The concept of remoteness of injuries is therefore used to determine the existence of any liability on the part of the defender. Contrary to this, remoteness of damage is concerned with the extent of liability once it has been established. The more recent literature seemingly does not consider the concepts of remoteness of injury and remoteness of damage to be necessarily connected. The problem of remote injuries now obviously is sometimes seen as an aspect of the delictual duty of care.                        Although there is unanimous agreement on the fact that damages do not only have to be causally connected but also must not be too remote from the injury, there are different opinions on how it should be determined if a damage actually is too remote to be recovered from the defender.  The most commonly cited classical authority in determining the remoteness of damages is the Obiter Dictum by Lord Kinloch. He states that:. …the grand rule on the subject of damages is, that none can be claimed except such as naturally and directly arise out of the wrong done; and such, therefore, as may reasonably be supposed to have been in the view of the wrongdoer. Lord Kinloch’s statement suggests a direct and natural consequences test, whereas in the end it introduces the reasonable foresight of the defender as a criterion for determining the remoteness of damage. Therefore Lord Kinloch has actually referred to a series of test of tests that that will determine the remoteness and extend of damages or injuries. When the damages and injuries have been measured and assessed, the defendant through the orders of the courts has to pay the offended party for the damages that he/she had caused. Damages and compensations are awarded by the court to restore the plaintiff to the pre tort position.  Personal injury and property damage may both have economic consequences. A person who sustains an injury may lose not simply the use of a limb but also the earning capacity which goes with it. He will receive compensation for loss of future earnings as well as for loss of the limb and facility in question.  As far as property damage is concerned, the courts will have primary regard to the market value of the property in question when assessing compensation for its loss. In these cases the law of tort provides compensation for economic losses arising directly out of physical loss Damages are classified as physical harm and damage to property and pure economic loss. Economic loss is further categorized as liability for negligent misstatement, negligence in the performance of a service, economic loss arising from defects in building and products and relational loss arising from damages to the property of a third party. In the situation presented in the beginning of this paper, Robert owe a duty of care to Edgar in the scenario since he is inside the premise of Edgar’s property and he is working and dealing with harmful chemicals and dangerous equipments. Duty of care also exists on Robert since he was asked by Edgar to help clean the garden. Because of this duty of care, Robert must exhibit the a standard of care wherein every aspects of his work does not compromise and endanger Edgar and other individuals. In the circumstances that followed Robert was clearly in breach of the duty of care that is mentioned. First, he since he was working with chemicals namely the weed killer, he did not foresee that leaving a weed killer can do damage and injure someone, in this case, the son of Edgar. He was also negligent with regards to the circumstances on how the son of Edgar came into contact with the weed killer. Aside from carelessly leaving the weed killer without proper precaution and prudence he also neglectfully failed to clean up the a pile of rubbish causing the son to fell over. Another breach of the mentioned duty of care in the part of Robert is the accidental injury suffered by Edgar when he was injured by the chainsaw being used by the defendant causing the amputation of the hands of the latter. On the part of Robert, care must be properly observed in handling and using dangerous equipments such as a chainsaw. A standard of care should be implemented by Robert when he is using the chainsaw. When he injured Edgar he is negligent and careless since he immediately turned around without properly assessing the situation around him. It can be argued that Robert did not exhibit the proper caution and vigilance that is necessary in his part. With regards to the injury suffered by Edgar, he must be justly compensated for the damages that he endured. Compensations and monetary reparation must be made using factors such as loss of income and competitive advantages that his work would bring since he had lost the use of one of his arms due to the injury. Plaintiff can also be entitled for the loss of enjoyment of life, pain, suffering and embarrassment brought about by the accident. The court can also award money to give the plaintiff an alternative gratification equivalent to the lost of a main body part, namely the hand. Lastly damages can also be sought by Edgar with regards to the hospital bills, medicines and other expenses related to the treatment of his injuries.               Credit:ivythesis.typepad.com

Particular Common Law

This paper will try to discuss and state a specific aspect of common law which is the duty of care. It will try to assess and to view the...

CORPORATIONS LAW RESEARCH PAPER ( AUSTRALIA )

In relation to Chapter 6 of the Corporations Act, what are the features of the rules or practices, which have been developed to deal with takeovers? To what extent does the regulatory regime achieve its objectives? Are these objectives socially desirable?   1) Introduction               Takeover or the acquisition of interests in a company to obtain control for crucial decision-making purposes received attention by the legal community with the enactment of the Corporations Act 2001. This is particularly because of the business context of the divided view over the efficiency and contribution of takeovers to various interested parties[1] such as the investors, the company from which shares are being put-up for sale, and the community at large potentially benefiting  from the multiplier effect of investments through the purchase of company shares. In many instances, conflicts arise in the interplay of these interests due to the assertion of the players of their own well-being since control over the company is primarily at stake indicating a certain degree of weariness over the decision to be made upon the acquisition of control of investors. To balance the interests of the parties involved, the Corporations Act 2001 seeks to provide rules covering the achievement of fairness in takeovers.         2) Features of the Rules or Practices Developed to Deal with Takeovers             Chapter 6 of the Corporations Act 2001 provides for the legally and illegally compliant ways for companies to give effect to turnovers so that companies complying with the legal rules in effect minimize risks for individual investors that in turn encourages the engagement of people in investments influencing economic growth[2]. This means that through the operation of the statute, fairness exists through the protection of the interests of shareholders while at the same time advocating the gains of companies from capital inputs to create more economic activities. This further implies that compliant turnovers tip the scale in favour of the beneficial effects of the business process to the parties involved. Compliance means meeting requirement provisions to facilitate an effective turnover such as status of the purchasing and the selling entities[3] and necessary documents[4] for transparency in the turnover[5] together with procedural provisions[6]. Without the guiding provisions of the statute, Wallis Ltd would be in the dark as to the prerequisites and the processes it has to follow in order to be legally compliant in effecting the turnover, which could result to the failure of the turnover or the turnover working against the company’s interests. The statute also identifies liabilities and provides remedies for investors[7] in instances working inequitably for them such as the inconsistencies in the prospectus of the company with its performance in the future[8]. To protect shareholder rights, the law allows investors to seek remedies in case the small-scale technology-based firm, after seeking stock exchange listing and issuing prospectus to shareholders, indicating a misstatement in the disclosure document since the information and future forecasts contained in the document did not push through[9]. Although the company has several defences available[10], a finding of contravention of the disclosure rules translates to the remedies of withdrawing money or returning securities subject to a refund[11]. The severity of the impact of the remedy to the company motivates the diligent disclosure of accurate information. The statute creates balance of interests to protect the interests of small investors while at the same time providing for compulsory acquisition or exceptions to acquisition following a takeover bid subject to certain requirements[12] in instances benefiting the company. Acquisition of shares goes through regulation by the limiting rule prohibiting the acquisition of relevant interests in voting shares[13] so that A Ltd is limited from acquiring Harry’s 2 percent holdings because of the beneficial holdings in T Ltd. However, the acquisition may push through if the transaction follows the acceptance of the offer in the takeover bid[14]. The Corporation Act 2001 is all about cautious transactions by providing important considerations during takeovers, so that Wallis’ acquisition of shares through a subsidiary company, involves the offer, the offer period, and documents about Wallis but limited only to the extent of determining pre-existing interests of the company in Duff Beer Ltd, and other considerations expected to assist Dan in deciding the offer for purchase of shares. 3. Extent that the Regulatory Regime Achieved its Objectives             Overall, Chapter 6 of the Corporation Act 2001 works towards the achievement of statutory and socio-economic objectives. Statutory objectives refer to the simplification of the provisions to achieve greater applicability and clarify the nature of turnover[15] while socio-economic objectives cover the protection of investor or shareholder rights in order to catalyse economic growth[16]. With regard to the first set of objectives, the statute was able to clarify requirement and procedural aspects of takeover activities. However, it allows the circumvention of its provisions such as the instances allowing the achievement of turnovers as schemes of arrangement instead of falling under the regulatory limits of the law[17].             In relation to the socio-economic objectives, the legislation was able to regulate turnovers in order to protect the interests of small investors or shareholders. However, in doing so the regulations were not sufficient to uphold interests, either due to the provisional or viability limitations of the act, of small investors so that big investors and shareholders still remain as the biggest beneficiaries of the law[18]. 4) Social Desirability of Objectives             The social desirability of these objectives depends upon the perspective of different parties in interest. The simplification and applicability of the corporation law enhances the salience of the rule of law by providing rule, limitations and remedies governing turnovers. Protection of the interests of investors, especially small shareholders serves as incentive for investors to engage in ventures supporting economic growth. Regulation benefits large investors in thinning competition due to the requirements and limitations. However, in practice these objectives become viable only if these limitations mentioned in the previous section are addressed to prevent circumvention of the law[19] and the defeat of the rights of shareholders[20] by parties having greater bargaining power. 5) Conclusion               Chapter 6 of the Corporation Act 2001 comprise a substantially sound legislation as expressed through its applicability in certain cases. However, it remains far from becoming simple and viable because applicable and effective rules need to provide doable or practical steps and guidelines nor is the statute socially viable since the application of the law works for the benefit of large investors despite the recognized significance of small investors in economic growth. Perhaps this calls for legal reform or jurisprudence. 6) References                                                             Secondary Sources         Legislation   Corporation Act 2001       Credit:ivythesis.typepad.com

CORPORATIONS LAW RESEARCH PAPER ( AUSTRALIA )

In relation to Chapter 6 of the Corporations Act , what are the features of the rules or practices, which have been developed to deal w...