Practice Assessment 2: Legal Research and Analysis Assignment (Semester 1, 2017)

 

 

 

 

 

 

 

 

 

 

Question One 

Discuss the legal issues arising from the article below.  Refer to relevant statute and/or case law in your answer.

          (10 Marks)

 

Advertisement for Sage Institute of Fitness which featured Commando Steve

Sage Institute of Fitness staff made redundant as company ceases trade

Eryk Bagshaw, Georgina Mitchell

 

8 Mar 2017, 5:26 p.m.

 

http://www.smh.com.au/business/staff-from-sage-institute-of-fitness-made-redundant-as-company-ceases-trade-20170307-gusypn.html

 

A private college network heavily promoted by Steve "Commando" Willis that spent more than a third of its taxpayer funded budget on advertising in one year has closed, leaving 1600 students in limbo and 200 staff redundant.

 

Shocked students at the college network, the Australian Careers Institute, which owns the Sage Institute of Fitness, have been informed that they will still be liable for up to $18,000 in student fees for courses that were yet to be completed.

 

The college earned more than $32 million over two years through the now-scrapped VET FEE-HELP loan scheme, while graduating 45 per cent of students.

 

A hearing in the Administrative Appeals Tribunal in October heard the college had spent $6 million marketing Commando Steve's unique "cutting edge" Diploma of Fitness Coaching Course in one year.

 

It was forced to shut its doors on Wednesday after a deal fell through with the owner of the National Basketball League, Larry Kestleman.

 

Mr Kestleman, who founded Dodo internet and made hundreds of millions of dollars out of high end property, took over the league after first purchasing Melbourne United.

 

The Melbourne basketball team used Mr Willis as the face of a new partnership between Sage and the Melbourne United basketball club in August 2016.

 

Sage has previously denied any taxpayer money was spent on the Melbourne United arrangement.

Larry Kestelman spends about $7 million annually on the National Basketball League Photo: Arsineh Houspian

 

 

Mr Willis, who has denied multiple requests for comment since Fairfax Media first revealed concerns over the college last year, told News Corp last week that he was also a victim of the college's demise.

 

 

"I have no ownership or financial interest in Sage and no involvement in the running of their business, so I can't speak to the reasons for their financial problems," he said.

Sage student James Dixon raised concerns about the facilities on offer. Photo: Joe Armao

 

The college, which has campuses in Sydney, Melbourne and Brisbane, had received no federal government money since late 2016, after the axing of the scandal-ridden VET FEE-HELP scheme caused cash to "dry up".

 

In a notice to students on Tuesday, administrator George Georges from Ferrier Hodgson said the plan to sell the company to Mr Kestleman's LK group would not be going ahead.

 

"Unfortunately, we have not received a Deed of Company Agreement [sic] proposal to allow the Group to continue to provide courses across Australia," the notice said.

 

"Therefore, the Administrators regret to advise that the Group has ceased to trade in Sydney and Brisbane, effective as at 7 March 2017."

 

Students have been told they "may still be liable" to pay for the portion of the course they have completed, despite the college shutting down.

 

They have lashed out at the college's operators, because the course promoted by Commando Steve as "unique" does not exist at other colleges.

 

Rheumatoid arthritis sufferer Robyn Dunphy, who undertook the course for her health and as part of a career change, said she had "organised a student revolt" over the misleading marketing of the college.

 

Student Lee Matthews said he "had been sucked in from the start".

 

"They market themselves to be the biggest and best in the industry and then you go there and see how it's run, it's just been disappointing really," he said.

 

"The so-called training facility is an absolute joke, it's a bit of old equipment on an office floor."

 

Classes at the college's "ground breaking, interactive learning" campuses have moved between four office buildings in Sydney alone since 2015. They have been suspended for seven days in Victoria.

 

"We are still exploring opportunities with regard to Victorian students," the notice said.

 

Ferrier Hodgson is working with the Australian Skills Quality Authority and the Australian Council for Private Education and Training to figure out how to assist students who are currently enrolled in the defunct courses.

 

"This will likely include assistance to transfer to another provider to complete your course," students were told on Tuesday.

 

"We appreciate that this can be a difficult time for students and their families and that you will have many questions."

 

The story Sage Institute staff sacked, colleges closed first appeared on The Sydney Morning Herald.

 

 

 

 

 

 

 

 

Question 2: 

Legal Hypothetical using IRAC                                                                                                                                                      (20 Marks)

 

 

Tina and Aristotle Papadopoulos are an elderly couple who immigrated to Australia from Greece in the 1950s.  They both worked very hard in their family fruit shop business in Oakleigh.  Tina and Aristotle want to spend more time with their grandchildren.  They are now ready to retire and have sold their fruit shop for a nice profit of  $750,000.

 

Tina and Aristotle want to invest this money.   They make an appointment to see William a financial adviser who advises clients on a variety of financial products and investments.

 

William recommends they invest the bulk of their money in Big Dreams Ltd by acquiring shares.  Tina and Aristotle are hesitant because they have never purchased shares before. William convinces them it’s a good investment and claims they will receive double their investment in 18 months.

 

In fact, Big Dreams Ltd is performing poorly financially and William has no basis for making these claims.

 

William also convinces Tina and Aristotle to take out life insurance with a particular company even though Tina and Aristotle specifically say they do not think they need this.  William is keen to sign them up because he receives a $400 Coles gift card for every client he signs up.

 

William prepares all of the necessary paperwork and obtains the life insurance policy for Tina and Aristotle.  William does not give the couple an opportunity to read the paperwork because he does not believe either Tina or Aristotle would understand it anyway. 

 

It turns out the life insurance policy is very expensive and the share investment falls through.

 

Required

 

Advise Tina and Aristotle whether William has breached the common law, the ASIC Act or the Corporations Act.  Refer to remedies and defences where appropriate.

 

 

 

 

LAW2457- Marking Rubric

Question 1: Newspaper Analysis:                                                                            10 Marks

 

Marking criteria Â	HD	D	C	P	N
1. KNOWLEDGE & UNDERSTANDING OF THE TOPIC 50% Â	Very thoroughly researched   Effective use of materials;   Comprehensive identification and discussion of issues   Excellent connections between content and legal issues	Well researched   Appropriate use of materials   Very good identification and discussion of issues   Very good connections between content and legal issues	Competently researched   Good use of materials   Majority of relevant issues identified and discussed.   Sound connections between content and legal issues Â	Some relevant materials overlooked   Some use of research materials     Possibly some misunderstanding of issues or materials   Some connections between content and legal issues	Limited research   Relevant materials overlooked or misunderstood   Failure to identify and discuss relevant issues     Poor connection between connect and legal issues
2. ANALYSIS & ARGUMENT 40%     Â	Thorough analysis, deals effectively with complexity of issues       Good critical evaluation of material     Clear and logical structure & organisation   Precise and concise writing	Good analysis       Some critical evaluation of materials.     Suitable and coherent structure & organisation;     Generally well written	Some analysis of issues       Synthesis of materials with limited critical evaluation.     Generally coherent structure & organisation but with occasional deficiencies     Reasonably well written Â	Mainly descriptive with little analysis of issues       Some reference to relevant material.   Some defects in structure and organisation     Writing may be difficult to follow in parts	Insufficient analysis         Failure to use relevant materials may indicate confusion or misunderstanding.     Structure and organisation incoherent or lacking     Poorly written, difficult to follow.
3. PRESENTATION & REFERENCING  10%   Use the English language and legal terminology with care and accuracy; correct referencing style throughout the paper.	Minimal errors in expression, grammar, spelling or punctuation     Full and accurate citation of authorities and sources     Thoroughly edited.	Occasional minor flaws in expression, grammar, spelling or punctuation     Authorities and sources are generally cited correctly     Well edited	Some flaws in expression, grammar, spelling or punctuation     May have some missing, incomplete or incorrect footnote citations     Some oversights in editing Â	Flaws in expression, grammar, spelling or punctuation     A number of missing, incomplete or incorrect footnote citations     Editing with little care	Frequent or repeated flaws in expression, grammar, spelling or punctuation     Inadequate citation of sources     Poor editing

 

 

 

Question 2: Legal Hypothetical Using IRAC                                                                 20 Marks

 

Marking criteria Â	HD	D	C	P	N
Issue  (10%)   Identify the area of law that is relevant to the problem question and clearly describe the legal problems that need to be addressed Â	  The area of law and the legal problem/s to be addressed are identified and completely described.   Â	  Very good identification and discussion of issues Â	Majority of relevant issues identified and discussed. Â	The area of law is correctly identified but the statement does not clearly describe the legal problem/s that need to be addressed.	  The relevant area of law is not identified. Â
2. Rules   (20%)   Identify the relevant legal principles and their source of authority.	All relevant legal principles are clearly explained and their correct source of authority is given.	All or most of the relevant legal principles are explained and their correct source of authority is given	Most of the relevant legal principles are explained and their correct source of authority is given	Some identification of relevant legal principles but the correct source of authority (section of Act or relevant case) has not been cited. Â	No relevant legal principles have been identified
Application/analysis (50%)   Consider each legal principle identified in the Rules section. Explain its relevance to the facts and how it can be applied or distinguished to support logical arguments about how the issue/s will be resolved. Â	  The discussion is a clear and comprehensive analysis of the relevant legal principles and their application to the facts to support logical arguments about how the issue/s will be resolved.	  Very good discussion and analysis of the relevant legal principles and their application to the facts to support logical arguments about how the issue/s will be resolved	  Good discussion and analysis of the relevant legal principles and their application to the facts to support logical arguments about how the issue/s will be resolved	  The discussion considers some of the relevant legal principles but does not apply those principles to the key facts to support logical arguments about how the issue/s will be resolved	  The discussion of the facts does not refer to any relevant legal principles.
Conclusion  (10%)   The conclusion is stated and provides an overview of how the arguments in the Application section address the Issue/s	The conclusion is very well supported by arguments in the   Application section and clearly explains how those arguments address the issue/s	The conclusion is supported by arguments in the   Application section and clearly explains how those arguments address the issue/s	The conclusion is supported by most of the arguments but the explanation of how those arguments address the issue/s is not clear or is incomplete   Â	The conclusion is supported by some of the arguments but does not explain how they address the issue/s	The conclusion is not stated or is not supported
Correct use of English language, legal terminology   and referencing. (10%)     Â	Minimal errors in expression, grammar, spelling or punctuation.       Full and accurate citation of authorities and sources     Thoroughly edited.	Occasional minor flaws in expression, grammar, spelling or punctuation     Authorities and sources are generally cited correctly   Well edited	Some flaws in expression, grammar, spelling or punctuation;     May have some missing, incomplete or incorrect citations   Some oversights in editing Â	Flaws in expression, grammar, spelling or punctuation;       A number of missing, incomplete or incorrect citations     Edited with little care	Frequent or repeated flaws in expression, grammar, spelling or punctuation     Inadequate citation of sources     Poor editing