Question of law

In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to the interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts. Answers to questions of law are generally expressed in terms of broad legal principles. They can be applied to many situations rather than particular circumstances or facts. An answer to a question of law as applied to the specific facts of a case is often referred to as a conclusion of law.

In several civil law jurisdictions, the highest courts deem questions of fact as settled by the lower courts and will only consider questions of law. They thus may refer a case back to a lower court to re-apply the law and answer any fact-based evaluations based on their answer on the application of the law. International courts such as the Benelux Court of Justice and the European Court of Justice will only answer questions of law asked by judges of national courts if they are uncertain about the interpretation of the law of multilateral organizations.

Questions of law are resolved by a judge or equivalent, while questions of fact are resolved by a trier of fact, which in the common law system is often a jury. Conclusions of law are more readily reconsidered by an appellate court, whereas findings of fact in a common law legal system are rarely overturned.

Question of fact

In law, a question of fact, also known as a point of fact, is a question that must be answered by reference to facts and evidence as well as inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles. The answer to a question of fact (a "finding of fact") usually depends on particular circumstances or factual situations.

All questions of fact can be proved or disproved by reference to a certain standard of evidence. Depending on the nature of the matter, the standard of proof may require that a fact be proven to be "more likely than not" (there is barely more evidence for the fact than against, as established by a preponderance of the evidence) or true beyond reasonable doubt.

Answers to questions of fact are determined by a trier of fact such as a jury or a judge. In many jurisdictions, such as England and Wales, appellate courts generally do not consider appeals based on errors of fact (errors in answering a question of fact). Instead, the findings of fact of the first venue are usually given great deference by appellate courts.

The philosopher Alfred Lessing argues that the difference between questions of law and questions of fact is ill-defined, with frequent disagreement over whether a given statement was the former or the latter.

The distinction between "law" and "fact" has proved obscure wherever it is employed. For instance, the common law used to require that a plaintiff's complaint in a civil action only state the "facts" of his case, not any "legal conclusions." Unfortunately, no one has ever been able to tell whether the allegation that "on November 9, the defendant negligently ran over the plaintiff with his car at the intersection of State Street and Chestnut Street" is a statement of fact or a legal conclusion. In fact, the distinction between law and fact is just the legal version of the philosophical distinction between "empirical" and "analytical" statements, a distinction on whose existence philosophers have been unable to agree to this day.  [...]  we will see that many defendants charged with impossible attempts are not in fact attempting the crime they are charged with attempting. They merely think they are committing a crime. ...

See also

• A priori and a posteriori
• Analytic–synthetic distinction
• Case brief
• Demarcation problem
• Epistemology
• Fact § In law
• Fact–value distinction
• Falsifiability
• Findings of facts
• Is–ought problem
• Judgment (law)
• Lord Advocate's Reference
• Problem of induction

ASSIGNMENT QUESTIONS

PART A – FINDING LAW

An important aspect of starting and operating a new business is finding relevant laws. There are now numerous online legal resources, many of which vary in quality. Therefore business people need to be able to locate and evaluate the reliability of a vast array of legal materials. This allows the most suitable legal resource to be identified and used.

In Part A of your report you must:

1. Locate and analyse the websites for two of the following regulators:

a. Court b. Tribunal c. Legislature d. Parliamentary committee e. Statutory authority f. Ombudsman

The two regulators must consist of one State/Territory regulatory actor and one federal regulator. Also, you cannot choose the same regulator for the two jurisdictions (eg. two courts).

2. Your analysis needs to identify one law for each online research source located in Part A.1 of your answer and then answer all of the following questions:

1) Identify whether the law is legislation (statute law) or case law. 2) Identify the relevant jurisdiction for the law. 3) Describe the key features of the law.

3. Evaluate the user experience for each website located in Part A.1 from the perspective of a business person. Your evaluation may include the format of the website, the use of visual aids, explanations of laws and legal processes and links to additional information or support.

450 words – 10 marks

ANSWER PART A Australia is a country with a large hospitality industry that is regulated by both the Federal and the State regulators. Setting up a coffee brewing plant and café should comply with different laws on business establishment, health and safety, and business law. The Federal government, as a regulator, provides a federal register of legislation that informs all Australian businesspeople and foreign investors of the laws that govern business in the country. The source website is Federal Register of Legislation - Competition and Consumer Act 2010, where all legislation dealing with Australian welfare is articulated. The Federal Register serves as the source of all laws and regulations, and Ronald can find laws dealing with the establishment of the coffee brewing plant (Australian Government, n.d). At the state level, within the hospitality industry, the New South Wales (NSW) Food Authority is a regulator that safeguards the health and safety of the citizens by managing the food quality and safety. The source website is https://www.foodauthority.nsw.gov.au, where Ronald can find information on the required licenses and permits for establishing a coffee brewing plant (NSW Food Authority, n.d). The information from the two regulators is critical in decision-making, especially because the businesses related to food items require cautionary measures. The Competition and Consumer Act 2010 is a statutory law found in the Federal Register that provides regulations on fair competition and consumer protection. The federal law applies to all businesses in all states and territories and comes with strict decrees on the operation of businesses, especially regarding competition, pricing, and product quality. Provisions within the law include contract creation and adherence, consumer rights, product safety, and the corresponding penalties or punishments of non-compliance, as well as enforceable remediations (Competition and Consumer Act 2010). The Act’s enforcement is executed through the issuance and revocation of licenses and permits after supervision of the businesses, as well as fines and other penalties if found guilty of contravening the law. In the NSW state government, the Food Regulation 2015 is a legislation law implemented to enable the licensing and inspection of food establishments. The law serves the New South Wales jurisdiction, where Ronald can get information on the requirements for licensing Backwards Pass Coffee Pty Ltd. The law also articulates the audit requirements, such as hygiene and non-compliance remedies, such as penalties and fines (Food Regulation 2015). The Australian Federal Register of Legislation’s website, Federal Register of Legislation - Home Page, is user-friendly with an interface that lets the user search for laws and regulations that govern a specific industry. The website format enables a search filter for acts, legislative instruments, gazette notices, and other administrative arrangements. Although the resource has all the relevant laws and regulations, a user has to have a basic understanding of their business and the laws relevant to it. The NSW Food Authority’s website https://www.foodauthority.nsw.gov.au, on the other hand, has a better format that is user-friendly with clear directions on the requirements for the establishment of a food facility. It contains all information on licensing, non-compliance implications, and remedies.

PART B – BUSINESS, LAW AND THE AUSTRALIAN LEGAL SYSTEM

Many entrepreneurs who start a small business possess limited knowledge of the Australian legal system and how legal rules and principles shape their daily operations. When undertaking the process to ‘start-up’ and then operate business, it is important for entrepreneurs and their staff to understand how the key features of Australia’s legal system will impact their activities.

In Part B of your report you must:

1. Describe the doctrine of terra nullius and evaluate two legal examples of how this doctrine has been overturned in the Australian legal system.

2. Describe the key features of the separation of powers doctrine. In your answer you need to also identify the purpose of the doctrine and how it is embedded in the Australian Constitution.

3. Multiple sources of law exist in Australia. Identify and describe the key features of the common law. Evaluate how the common law can change. In your answer provide one example of a common law that regulates business.

450 words – 10 marks PART B ANSWER The doctrine of terra nullius was a legal principle used by the British colonizers until 1992, which declared Australia as land belonging to no one or unowned land (Mabo v. Queensland, 1992). Under the law, the aboriginal Australians did not have any legal right to property in Australia. In the case of Cooper v Stuart, the terra nullius doctrine was established by the justification of the application of English Common law in Australia, where New South Wales was declared unoccupied (Cooper v Stuart, 1889). The case was deemed to have extended the doctrine without consideration of the rights of the First Nations or indigenous occupation. However, in 1992, the High Court, through the Mabo vs Queensland, ruled out the doctrine by recognizing the native title. The case enabled the Aboriginal and Torres Strait to regain the rights to the land with the enjoyment of possession, occupation, and use. The landmark ruling acknowledged the historical occupation of ancestral land by the indigenous people. The separation of powers doctrine is embedded in the constitution, which separates the powers of government into three arms: the Legislature, the Executive, and the Judiciary. The key feature of the doctrine is the establishment of an interdependent separation of powers and functions where each arm lacks single agency absolutism and acts as an agent for checks and balances for other arms (Parliament of New South Wales, n.d). The doctrine ensures that each arm of government is independent but does not possess ultimate power since it is subject to the other arms for proper governance. The executive reserves the right to develop government ministries, departments, and agencies that offer leadership. The legislature deals with the development of laws in the two parliaments: The upper house (senate) and the Lower house (House of Representatives). The separation of powers is embedded in the constitution as a partial separation rather than a distinct separation since the ministers must be members of parliament. The common law is a collection of court decisions that are pivotal in the establishment of fundamental decisions and reasoning within the court system. The law is created by the superior courts and is determined by the state and territory jurisdictions, where decisions become applicable based on the court decisions and the state involved. According to (Legal Services CSA, n.d), a vital feature of the common law is the doctrine of precedent. The doctrine provides for the process of determining cases based on judgments of cases in higher courts. In some instances, the common law can receive support from parliament, which can then constitutionally establish it as a binding law. In business, an example of common law is the Bill of Rights, which is embedded in the common law principle of legality. According to (Henry-Comley, n.d) Australia lacks a bill of rights, thereby relying on the common law principle of legality and the High Court’s interpretation of the constitution to protect the fundamental rights of Australians.

PART C – BUSINESS, AGREEMENTS AND CONTRACT LAW

In developing and implementing a business plan, your client needs to understand Australian contract law. To manage commercial and legal risks, business people need to recognise the legal obligations created by the common law of contract in creating a legally enforceable contract. Your answer in Part C must answer the following two questions.

1. Terms of a contract and remedies

Ronald requires advice on how to identify and manage the commercial and legal risk associated with entering business agreements as he is unfamiliar with Australian contract law. You must advise Ronald how contract terms and remedies impact business arrangements.

In Part C.1 of your report you must:

1. Identify and describe the legal differences between the classification of a term of a contract as either a condition or a warranty. Evaluate the different commercial impact of breaching a condition or a warranty in relation to available remedies. Your answer must be supported by common law of contract legal principles and cases. Do not discuss statute law.

2. Identify and describe three types of remedies available when a contract has been breached. In your answer identify whether each remedy is a common law remedy or equitable remedy. Identify the relevant dispute forum that would issue each type of remedy.

3. There are multiple forms of dispute resolution for resolving commercial disputes. Identify and describe the key features of litigation and arbitration. Evaluate the benefits and limitations of each method of dispute resolution.

500 words – 10 marks PART C answer When engaging in business, the firm must enter into a contractual agreement that attracts commercial and legal risk. A contract is a legally binding obligation of conduct, responsibilities, and delivery of products or services agreed upon within a business operation or project. In instances of a breach, the recommended remedies include conditions or warranties. Based on Australian law, under conditions, the aggrieved party can terminate the contract, while under a warranty, one can only claim damages (Australian Contract Law, n.d). Since a condition is tied to the specific and strict performance of a contract, breaching the contract justifies termination as opposed to the warranty that implies performance rather than making it a necessary obligation, in the case of Koompahtoo Local Aboriginal Land Council Vs. Sanpine Pty Ltd (2007), the contractual breach necessitated the termination of the joint venture of the land development. In contrast, in the Shepperd Vs. the Council of the Municipality of Ryde (1952) case, a claim of damages was forwarded since the plaintiff bought land with the expectation of a park being built across their land. After the subdivision of the land rather than the development of the park, the plaintiff prayed to the court for an injunction on the subdivision to receive compensation for damages. The three types of remedies that are taken in the event of a breach of contract include compensation for damages, specific performance orders, and injunctions. Compensation for damages occurs when an aggrieved party is awarded compensation that is equivalent to the loss and damages incurred due to the contract breach. In the case of specific performance orders, the defendant is compelled to enforce clauses within the original contract that allow for the completion of their obligation and performance responsibilities. Injunctions, on the other hand, occur where the obligor is required to perform or execute particular contract clauses or compelled to cease the execution of clauses until specific requirements are attained. According to the Australian Contract (n.d), the common law provides discretionary remedies that award loss and damage compensation in instances of a breach. Remedies within the common law include claims for damages that substitute non-compliance with the contract or liquidated damages that provide a monetary value to remedy the breach based on an agreed evaluation. Equitable remedies, on the other hand, are discretionary but do not provide an award for the breach. Equitable remedies include court orders on the execution of specific contract performance or injunctions that cease the execution of specific obligations (Australian Contract Law, n.d). According to the contract, dispute resolutions are outlined where both parties agree on the arbitrator, such as a tribunal, regulating authority, or court of law. In Australia, litigation and arbitration are the most used dispute resolution used in a business setting. Litigation involves a formal prosecution in a court where parties are offered the chance to plead their case with the delivery of a judgment based on the underlying laws (Cali, 2024). The advantage of litigation is that it provides a legally binding final judgment that has no ambiguity since it relies on the party’s rights and obligations. However, they are public, time-consuming, and require the guidance of a legal practitioner, which makes them expensive. In contrast, arbitration resembles a court, but the parties voluntarily agree to be bound by the decision of the arbitrator (Cali, 2024). The arbitrator is an impartial third-party expert in the subject matter. Arbitration is fast, more affordable, and provides an avenue for the parties to understand each other perspective. However, it is informal and may be prone to bias if the arbitrator is not professional. Part C – Employment practices and restraint of trade clauses The commercial purpose of a restraint of trade clause is to protect trade information, secrets, and strategies from being transferred to other competitors after termination or completion of an employee’s contract. The restraint limits the employee from using information or strategies and engaging with other entities within the same industry for a specific period after exiting the firm. Common law allows for the restraint clause and provides the contractual basis under which it can be used without infringing on the fundamental rights of the employees (Australian Competition Law, n.d). The restriction must be reasonable to ensure that both parties are able to conduct legitimate trade while protecting each other from unfair competition. The law requires that employment contracts and associated litigations meet personal liberty to trade and the public interest by justifying ownership of information, secrets, or confidential information and how it provides competitive advantages to other organizations. The restraint must be valid by articulating the unique circumstances that justify the ownership of information or strategies and show the damage of unauthorized use of the information. According to the structure of Ronald’s drafted restraint clause, it is unreasonable to subject the restraint to all employees, considering that not all workers hold positions allowing them to access confidential information or company secrets. The clause expresses terms that restrict employees from holding any position with other competitors in the industry, thereby deeming it unreasonable considering the vast differing jobs within the coffee sector in Australia. The non-compete clause should be drafted in a manner that allows the discernment of positions that would jeopardize Ronald’s business in coffee brewing. All other positions not privy to trade secrets must be exclusively excluded to ensure employee liberty of trade. Similarly, the 10-year period is punitive considering the interest of the employee. The clause must also maintain a locational scope that encompasses Ronald’s market base or area and not the whole country. An example of a justifiable restraint is the Lindner V Murdock’s Garage (1950) case that restricted trade in Murdock’s sales territory for specific occupations or employment for a reasonable time. Ronald should adjust the clause to ensure its specificity on the type of employment, period, and area of trade. To protect Ronald’s company and ensure no infringement on the rights of the employees, the restraint should be apparent on the specific trade or type of employment that is privy to the confidential information. Additionally, Ronald must ensure that the restraint has clear area boundaries where the clause is applicable based on the company’s consumer base. Restraints in areas that the coffee brewer does not serve are unreasonable. A new valid restraint of trade must be drafted based on the common law doctrine with proper occupation description, area boundary, and reasonable time. Below is a proposed clause: Restraint of Trade: In order to protect the employer’s proprietary interest, for three years after the termination of this contract, an employee who leaves the company for whatsoever reason will not engage for or on behalf of an organization that is a direct competitor or through the establishment of a company in coffee brewing in all customer base areas in Sydney and within a radius of 25 km from Sydney.

References Australian Government. (n.d). Federal Register of Legislation. Federal Register of Legislation - Home Page Australian Contract Law (n.d). Classification of Terms. Australian Contract Law. Classification of terms — Australian Contract Law Cali, M. (2024). Pros and Cons of Negotiation and Litigation. Legalvision. Pros and Cons of Negotiation and Litigation | LegalVision Competition and Consumer Act 2010 (Cth). (2010). Federal Register of Legislation - Competition and Consumer Act 2010 Cooper v Stuart 14 App Cas 286 (1889). Cooper v Stuart (1889) 14 App Cas 286 — Discovery - the University of Dundee Research Portal Food Regulation 2015 (NSW). Food Regulation 2015 - NSW Legislation Henry-Comley. (n.d). The Principle of Legality: An Australian Common Law Bill of Rights? 5.pdf (austlii.edu.au) Lindner V. Murdock’s Garage [1950] HCA 48; (1950) 83 CLR 628. Lindner v Murdock's Garage [1950] HCA 48; (1950) 83 CLR 628 (21 November 1950) (austlii.edu.au) Mabo v. Queensland, No. 2 (1992). Mabo v Queensland (No. 2) (1992): Case Summary and Legal Principles (juristopedia.com) NSW Food Authority. (n.d). Safe food, clear choices NSW Food Authority. NSW Government. Safe food, clear choices NSW Food Authority | NSW Food Authority Parliament of New South Wales. (n.d). Separation of Powers. NSW parliament. https://www.parliament.nsw.gov.au/about/Pages/Separation-of-Powers.aspx#:~:text=The%20doctrine%20of%20the%20separation%20of%20powers%20divides%20the%20institutions,the%20judiciary%20interprets%20the%20laws.

  2. Employment practices and restraint of trade clauses

Ronald is a skilled coffee roaster but needs to employ at least two roasters so that he can develop and operate the business. He is very worried that he will pass on his knowledge and experience to his staff, who may then go and work for a competitor and share the coffee roasting secrets he learned in England. He did some online research on how to protect his business from such risks and identified as a potential solution a restraint of trade clause in employee contracts.

Ronald drafted the following clause for the contracts of all coffee roasters based on his internet research:

‘Upon the end of this agreement the employee agrees to not work in any capacity for any other coffee related business in Australia for a period of ten years.’

In Part C.2 of your report you must advise Ronald on the following matters:

1) Describe the commercial purpose of a restraint of trade clause. 2) Advise Ronald whether his proposed restraint of trade clause is enforceable. Your answer must be supported by common law of contract legal principles and cases. Do not discuss statute law. 3) Propose to Ronald a new restraint of trade clause that is likely to meet the requirements of the common law restraint of trade doctrine.

600 words – 10 marks