For prospective law students ...

[*ryan777*]

Haha, what were they saying?

For employers, I've found they're more often interested in your course rather than which university you went to. Some companies will only ask for commerce/business/accounting etc. / law students for example. So with your ENTER (where you can get into either course easy) the more pressing issue would be what exactly you want to do with your law degree.

surely employers would recognise (unofficialy at least) that some universities have higher quality courses than others?
ie X degree is better at job applicant A's university than applicant B's so employers would be more willing to hire A over B
(in case nobody has picked up im talking in generall here and not just about law)

lol as for jejak and your relatives, dont worry, im going to uom yet most of my family went to monash anyway

[herzy]

as I know a lot of people in my yr 12 cohort are/were put off by the lack of an undergrad degree.

+ 1

[ninwa]

Haha, what were they saying?

For employers, I've found they're more often interested in your course rather than which university you went to. Some companies will only ask for commerce/business/accounting etc. / law students for example. So with your ENTER (where you can get into either course easy) the more pressing issue would be what exactly you want to do with your law degree.

surely employers would recognise (unofficialy at least) that some universities have higher quality courses than others?
ie X degree is better at job applicant A's university than applicant B's so employers would be more willing to hire A over B
(in case nobody has picked up im talking in generall here and not just about law)

lol as for jejak and your relatives, dont worry, im going to uom yet most of my family went to monash anyway

Oh sorry I should've clarified. Employers do care what university you went to. I only meant that they don't usually differentiate between UoM and Monash graduates, as both universities are similar in terms of reputation.

[*ryan777*]

Haha, what were they saying?

For employers, I've found they're more often interested in your course rather than which university you went to. Some companies will only ask for commerce/business/accounting etc. / law students for example. So with your ENTER (where you can get into either course easy) the more pressing issue would be what exactly you want to do with your law degree.

surely employers would recognise (unofficialy at least) that some universities have higher quality courses than others?
ie X degree is better at job applicant A's university than applicant B's so employers would be more willing to hire A over B
(in case nobody has picked up im talking in generall here and not just about law)

lol as for jejak and your relatives, dont worry, im going to uom yet most of my family went to monash anyway

Oh sorry I should've clarified. Employers do care what university you went to. I only meant that they don't usually differentiate between UoM and Monash graduates, as both universities are similar in terms of reputation.

ok good to hear, i just didnt like the idea of uom being considered equal to say... vu or deakin

[vexx]

old thread but:

ninwa, i don't understand how you study law this way haha.
so basically you have that huge case (which i'm sure is quite short, yes?) but then what do you do with it, you read through it and make notes on what? and then how do you study from it?
and how do you link all the cases you do in that week, is there a lot of ROTE learning?
&so then how is it all tested in the exams...?

haha sorry, just curious..

[ninwa]

How do I study?
I leave the case til a week before the exam then frantically search for study guides. I do not recommend this if you want a legal job after graduation.

How you're supposed to study:
Most high court judgments are that long but we get textbooks which only take the useful segments. Those cases often deal with a whole range of legal issues so the textbook authors only take the chunks relevant to the issues we're studying.

So you're supposed to read (at least - some lecturers are all "you can read the whole case if you're keen!" and I'm all "gtfo") that segment and then extract the main principles from it. You are directed to read specific cases because they contain statements on how the law is currently interpreted.

You take the principles from every case basically. You don't really need to memorise specific details of the circumstances of the case (although basic facts are useful if you wish to distinguish situations in the exam problems).

There's not much rote learning for open-book exams; I haven't done a closed-book exam yet (they're only just beginning to phase them in) but I imagine there might be a bit of rote-learning of principles.

For an open book exam your notes would probably look something like this:
Area of law A
<case A1>: established <principle A1>
<case A2>: established <principle A2>

Area of law B
<case B1>: established <principle B1>
<case B2>: established <principle B2>

Exam question will describe a situation and then say "advise client".

You go through the situation and identify all the relevant areas of law (which is a lot harder than it sounds).

Then you might spot something like "hey this part of the problem sounds a lot like case B1" and then you will turn to your notes and take principle B1 and apply it to the problem. (So your answer can look something like "client would/would not succeed because according to the principle established in case B2, blahblahblah")

Sorry for the ramble. Hope it makes sense

[vexx]

ahhh thank you! it did make sense..
so basically it's a lot of reading, and understanding concepts through that with cases, even in the first few subjects? it sounds weird but not that bad, maybe cos i like reading hah. not sure if i'd like reading 'law cases' though.
.. and you can basically cram well for it o-O how are you doing in law? straight HD;)

well i just assumed law was private studying about a million concepts to memorise, i must have been sooooo wrong. haha

[ninwa]

Yeah it's pretty much like that for all law subjects.

It is possible to cram and do well BUT you're pretty much playing Russian roulette with your degree.
Also, no comment re: my marks

There may need to be far more memorising in future as the law faculty at Monash is slowly changing all exams to closed-book. (Don't know about other universities)

Law cases can be a bit tedious to read, especially since judges are notoriously bad at expression and will construct the most grammatically awkward sentences that you have to read 3 times just to understand. Also they often like to ramble on about something extremely complex for 10 pages, and then after you've waded through all that they'll say "oh btw none of that was relevant soz" =_=''

But once you get used to them they can be enjoyable. Some of the situations you'll read about are seriously funny as hell. Also when your life consists of reading legal judgments, you learn to find the humor in anything or you'll go batshit crazy.

Also some judges are actually quite entertaining to read, e.g. here's some quotes from Michael Kirby, my favourite high court justice of all time:

CALLINAN J: Mr Jackson, it seems to me that clearly the people at the party, including Ms Joslyn and Mr Berryman, went out with the intention of getting drunk.

MR JACKSON: It would be a big night, your Honour, big night.

CALLINAN J: With the intention of getting drunk and they fulfilled that intention.

MR JACKSON: Well, your Honour, young people sometimes...

KIRBY J: I just think “drunk” is a label and I am a little worried about - it is not necessary to put that label. It is just that they were sufficiently affected by alcohol to affect their capacity to drive.

MR JACKSON: Yes.

KIRBY J: “A drunk” has all sorts of baggage with it.

HAYNE J: Perhaps “hammered” is the more modern expression, Mr Jackson, or “well and truly hammered”.

MR JACKSON: I am indebted to your Honour.

KIRBY J: I do not know any of these expressions.

McHUGH J: No, no. Justice Hayne must live a very different life to the sort of life we lead.

KIRBY J: I have never heard that word “hammered” before, never. Not before this very minute.

MR MARTIN: Indeed, your Honour. The agreement, in our submission, needs to be put into its context, and I will do that very briefly. The background is that prior to 1980 there were, amongst other brands, two substantive brands of ice-cream being marketed in the country, one under the name Peters, the other under the name Pauls.

KIRBY J: Was there a quality differential? Was Pauls not a more high class sort of ice-cream than Peters?

MR MARTIN: Different views were held by different consumers on that subject, I think, your Jonour, and there is no evidence bearing directly on that.

KIRBY J: You do not have any samples for us?

MR MARTIN: No, I am afraid not, your Honour.

KIRBY J: Could you give me the page again, I am sorry.

MR JACKSON: Page 148, your Honour, in volume 1.

KIRBY J: I must be getting a bit deaf, Mr Jackson.

GUMMOW J: You are.

KIRBY J: There is no need for my colleagues to agree; sometimes it is a mercy.

KIRBY J: As Chief Justice Gleeson said in the special leave application, none of us look particularly beautiful in a balaclava; all of us look a little bit suspicious in a balaclava. It is certainly something that is very unusual. I have never heard of anything like this happening in a trial before.

MR GAME: This is a balaclava which, at this stage in the trial at least is not being said to be the balaclava that was used in the robbery. It is a balaclava taken from a spare bedroom at the house-...

KIRBY J: Balaclavas are not a vast range of boutique product.

MR GAME: No, your Honour.

---

GUMMOW J: What is the provenance of this balaclava?

MR GAME: It was taken from a spare room at the appellant's father's house where the appellant resided.

KIRBY J: I think his father said, did he, or is it only the caps that he had been given by the TAB.

MR GAME: Yes, the caps.

KIRBY J: The balaclavas had not been given?

MR GAME: No, no.

KIRBY J: There were a number of balaclavas, were there not?

MR GAME: There were hundreds of balaclavas, first in the garage and later moved...

KIRBY J: He going into the balaclava selling business, is he?

MR GAME: Yes.

KIRBY J: Hundreds of balaclavas.

MR GAME: Yes, your Honour.

KIRBY J: Since Sevastopol, how can there be hundreds of balaclavas?

CRENNAN J: Twenty five boxes, I think, Mr Game.

MR GAME: I do not know how many balaclavas you can put in a box but there were lots of balaclavas.

GUMMOW J: Fallen off a truck probably.

Kirby says he will miss the court jesting. "Some of my colleagues are not, shall we say, strong in the humour department.

"Justice Callinan can share a joke. During the boring bits of a trial, it's good to pen drawings of colleagues or someone at the table. Justice Callinan appreciated my drawings. Most of my colleagues do not."

(His introduction to a dissenting judgement - insurance claim on permanent disability - construction of 'permanent disability')

The ninety-first Psalm reflects the common human fear of injury to the foot. The Psalmist promises rescue from various misfortunes. The angels, we are assured, will take charge over the righteous:1

They shall bear thee up in their hands, lest thou dash thy foot against a stone.

Unfortunately, angels did not intervene to protect the appellant's foot. But he had an insurance policy.

MR R.J. DOUGLAS, SC: If it please the Court, I appear with MR D.J. KELLY for the applicant. (instructed by Carter Capner and Co)

MR H.B. FRASER, QC: May it please the Court, I appear with MR R.J. MORGAN for the respondent. (instructed by HBM Lawyers)

KIRBY J: Yes, Mr Douglas.

MR DOUGLAS: Thank you. Your Honours, there are two issues, in our submission, which ordain this matter as apt for appellate disposition by this Court.

KIRBY J: Could you explain to me what a BMX bike is? My rather cloistered life has prevented my ever getting to know what that form of bicycle is.

[vexx]

^haha, i actually found those amusing. a little giggle here and there i must say!
"KIRBY J: Could you explain to me what a BMX bike is? My rather cloistered life has prevented my ever getting to know what that form of bicycle is." that has to be taken out of context HAHAHA.

ahhh closed-book? will this possibly happen when i arrive at monash.. (if i ever happened to do law..unlikely...)

i still don't get how to study by just reading, i don't know if i'd be able to take everything in, i think i'd get lazy and just read the summaries ..

so does that mean getting 70%+ in the units is difficult? how much time would this require, considering it's a person who can't really write essays very well..hard?

[ninwa]

Well some core subjects (contracts and property law) are already closed book now so I'd guess that yes, if you were to start law next year, you'd have to do a fair few.

Yes a 70%+ is difficult. Time required varies depending on how smart you are and also on your natural affinity for the subject. Some people are just better at some areas of law, I don't know why.

Reading cases serves 2 general purposes: to teach you about the law as it stands now, and to teach you about how to structure a legal argument.

[lynt.br]

A sample case extract from the Contracts B Textbook:

FACTS
By a time charter dated 26 December 1956, it was mutually agreed between the owners of the vessel Hong Kong Fir, classed Lloyd's 100 A1, and the charterers that (cl 1) the owners would let and the charterers hire the vessel for twenty-four months from the date of her delivery to the charterers at Liverpool “she being in every way fitted for ordinary cargo service”, and that (cl 3) the owners would “maintain her in a thoroughly efficient state in hull and machinery during service”. Under the charter hire was payable at the rate of 47s per ton, but it was provided that no hire should be paid for time lost exceeding twenty-four hours in carrying out repairs to the vessel and that such off-hire periods might at the charterers' option be added to the charter time. The vessel was delivered to the charterers at Liverpool on 13 February 1957, and on the same day she sailed for Newport News, USA, to load a cargo of coal which she was to carry to Osaka. When she was delivered to the charterers at Liverpool, her engine-room was undermanned and her engine-room staff incompetent, although the owners knew that the vessel's machinery was very old and, therefore, required an ample and efficient engine-room staff to maintain it. During the voyage to Osaka, the vessel was off hire for repairs to her engines for a total period of about five weeks, and when she arrived at Osaka, on 25 May 1957, it was found that the engines were in a very bad state and that it would take a further fifteen weeks to make the vessel seaworthy. The condition of the engines at Osaka was due mainly to the inefficiency of the engine-room staff on the voyage from Liverpool. By 15 September 1957, the vessel had been made seaworthy in every respect and then had an efficient and adequate engine-room staff; at that date she was still available to the charterers for seventeen months. In mid-June, there had been a steep fall in freight rates from 47s to 24s per ton, and by mid-August the rates had dropped again to 13s 6d per ton. On 6 June and on 11 September 1957, the charterers had written to the owners repudiating the charter. In an action by the owners for wrongful repudiation, the trial judge found that the owners were in breach of cl 1 of the charter in delivering a vessel that was unseaworthy with regard to her engine-room staff, and were also in breach of cl 3 in negligently failing to maintain the vessel in an efficient state, but that in June there were no reasonable grounds for thinking that the owners were unable to make the vessel seaworthy by mid-September at the latest. The charterers contended
[1962] 1 All ER 474 at 475

that the owners' breaches of charter entitled them to repudiate the charter, alternatively that the charter had been frustrated.

DIPLOCK LJ.

The contract, the familiar Baltime 1939 Charter, and the facts on which this case turns have been already stated in the judgment of Sellers LJ who has also referred to many of the relevant cases. With his analysis of the cases, as with the clear and careful judgment of Salmon J , I am in agreement, and I desire to add only some general observations on the legal questions which this case involves.

Every synallagmatic contract contains in it the seeds of the problem: in what event will a party be relieved of his undertaking to do that which he has agreed to do but has not yet done? The contract may itself expressly define some of these events, as in the cancellation clause in a charterparty, but, human prescience being limited, it seldom does so exhaustively and often fails to do so at all. In some classes of contracts, such as sale of goods, marine insurance, contracts of affreightment evidenced by bills of lading and those between parties to bills of exchange, Parliament has defined by statute some of the events not provided for expressly in individual contracts of that class; but, where an event occurs the occurrence of which neither the parties nor Parliament have expressly stated will discharge one of the parties from further performance of his undertakings, it is for the court to determine whether the event has this effect or not. The test whether an event has this effect or not has been stated in a number of metaphors all of which I think amount to the same thing: does the occurrence of the event deprive the party who has further undertakings still to perform of substantially the whole benefit which it was the intention of the parties as expressed in the contract that he should obtain as the consideration for performing those undertakings? This test is applicable whether or not the event occurs as a result of the default of one of the parties to the contract, but the consequences of the event are different in the two cases. Where the event occurs as a result of the default of one party, the party in default cannot rely on it as relieving himself of the performance of any further undertakings on his part and the innocent party, although entitled to, need not treat the event as relieving him of the performance of his own undertakings. This is only a specific application of the fundamental legal and moral rule that a man should not be allowed to take advantage of his own wrong. Where the event occurs as a result of the default of neither party, each is relieved of the further performance of his own undertakings, and their rights in respect of undertakings previously performed are now regulated by the Law Reform (Frustrated Contracts) Act, 1943.

This branch of the common law has reached its present stage by the normal process of historical growth, and the fallacy in counsel for the charterers' contention that a different test is applicable when the event occurs as a result of the default of one party from that applicable in cases of frustration where the event occurs as a result of the default of neither party arises, in my view, from a failure to view the cases in their historical context. The problem: in what event will a party to a contract be relieved of his undertaking to do that which he has agreed to do but has not yet done? has exercised the English courts for centuries, probably ever since assumpsit emerged as a form of action distinct from covenant and debt, and long before even the earliest cases which we have been invited to examine; but, until the rigour of the rule in Paradine v Jane was mitigated in the middle of the last century by the classic judgments of Blackburn J in Taylor v Caldwell and Bramwell B, in Jackson v Union Marine Insurance Co, it was in general only events resulting from one party's failure to perform his contractual obligations which were regarded as capable of relieving the other party from continuing to perform that which he had undertaken to do.

In the earlier cases before the Common Law Procedure Act, 1852, the problem tends to be obscured to modern readers by the rules of pleading peculiar to the relevant forms of action—covenant, debt and assumpsit, and the nomenclature adopted in the judgments, which were mainly on demurrer, reflects this. It
[1962] 1 All ER 474 at 486

was early recognised that contractual undertakings were of two different kinds: those collateral to the main purpose of the parties as expressed in the contract, and those which were mutually dependent so that the non-performance of an undertaking of this class was an event which excused the other party from the performance of his corresponding undertakings. In the nomenclature of the eighteenth and early nineteenth centuries, undertakings of the latter class were called “conditions precedent”, and a plaintiff under the rules of pleading had to aver specially in his declaration his performance or readiness and willingness to perform all those contractual undertakings on his part which constituted conditions precedent to the defendant's undertaking for non-performance of which the action was brought. In the earliest cases, such as Pordage v Cole and Thorpe v Thorpe, the question whether an undertaking was a condition precedent appears to have turned on the verbal niceties of the particular phrases used in the written contract, and it was not until 1779 that Lord Mansfield, in the case which is a legal landmark, Boone v Eyre ((1779), 1 Hy Bl at p 273 n), swept away these arid technicalities. He said:

    “The distinction is very clear, where mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one precedent to the other. But where they go only to a part, where a breach may be paid for in damages, there the defendant has a remedy on his covenant, and shall not plead it as a condition precedent.”

This, too, was a judgment on demurrer, but the principle was the same when the substance of the matter was in issue. Other phrases expressing the same idea were used by other judges in the cases which have already been cited by Sellers LJ (See p 480, letters e to i, ante), and I would only add to his comments on them that, when it is borne in mind that, until the latter half of the nineteenth century, the only event that could be relied on the excuse performance by one party of his undertakings was a default by the other party, no importance can be attached to the fact that, in occasional cases, and there may be others besides Freeman v Taylor, the court has referred to the object or purpose of the party not in default rather than to the object or purpose of the contract, for the relevant object or purpose of the party not in default is that on which there has been a consensus ad idem of both parties as expressed in the words which they have used in their contract construed in the light of the surrounding circumstances.

The fact that the emphasis in the earlier cases was on the breach by one party to the contract of his contractual undertakings, for this was the commonest circumstance in which the question arose, tended to obscure the fact that it was really the event resulting from the breach which relieved the other party of further performance of his obligation; but the principle was applied early in the nineteenth century and without analysis to cases where the event relied on was one brought about by a party to a contract before the time for performance of his undertakings arose, but which would make it impossible to perform those obligations when the time to do so did arrive: for example, Short v Stone; Ford v Tiley; Bowdell v Parsons . It was not, however, until Jackson v Union Marine Insurance Co , that it was recognised that it was the happening of the event and not the fact that the event was the result of a breach by one party of his contractual obligations that relieved the other party from further performance of his obligations. Bramwell B, said ((1874), LR 10 CP at p 147):

    “… there are the cases which hold that, where the shipowner has not merely broken his contract, but so broken it that the condition precedent is not performed, the charterer is discharged … Why? Not merely because

[1962] 1 All ER 474 at 487

    the contract is broken. If it is not a condition precedent, what matters it whether it is unperformed with or without excuse? Not arriving with due diligence, or at a day named, is the subject of a cross-action only. But, not arriving in time for the voyage contemplated, but at such a time that it is frustrated, is not only a breach of contract, but discharges the charterer. And so it should, though he has such an excuse that no action lies.”

Once it is appreciated that it is the event and not the fact that the event is a result of a breach of contract which relieves the party not in default of further performance of his obligations, two consequences follow: (i) The test whether the event relied on has this consequence is the same whether the event is the result of the other party's breach of contract or not, as Devlin J pointed out in Universal Cargo Carriers Corpn v Citati ([1957] 2 All ER at p 83; [1957] 2 QB at p 434). (ii) The question whether an event which is the result of the other party's breach of contract has this consequence cannot be answered by treating all contractual undertakings as falling into one of two separate categories: “conditions”, the breach of which gives rise to an event which relieves the party not in default of further performance of his obligations, and “warranties”, the breach of which does not give rise to such an event. Lawyers tend to speak of this classification as if it were comprehensive, partly for the historical reasons which I have already mentioned, and partly because Parliament itself adopted it in the Sale of Goods Act, 1893, as respects a number of implied terms in contracts for the sale of goods and has in that Act used the expressions “condition” and “warranty” in that meaning. But it is by no means true of contractual undertakings in general at common law.

No doubt there are many simple contractual undertakings, sometimes express, but more often because of their very simplicity (“It goes without saying”) to be implied, of which it can be predicated that every breach of such an undertaking must give rise to an event which will deprive the party not in default of substantially the whole benefit which it was intended that he should obtain from the contract. And such a stipulation, unless the parties have agreed that breach of it shall not entitle the non-defaulting party to treat the contract as repudiated, is a “condition”. So, too, there may be other simple contractual undertakings of which it can be predicated that no breach can give rise to an event which will deprive the party not in default of substantially the whole benefit which it was intended that he should obtain from the contract; and such a stipulation, unless the parties have agreed that breach of it shall entitle the non-defaulting party to treat the contract as repudiated, is a “warranty”. There are, however, many contractual undertakings of a more complex character which cannot be categorised as being “conditions” or “warranties” if the late nineteenth century meaning adopted in the Sale of Goods Act, 1893, and used by Bowen LJ in Bentsen v Taylor, Sons & Co (2), ([1893] 2 QB at p 280), be given to those terms. Of such undertakings, all that can be predicated is that some breaches will, and others will not, give rise to an event which will deprive the party not in default of substantially the whole benefit which it was intended that he should obtain from the contract; and the legal consequences of a breach of such an undertaking, unless provided for expressly in the contract, depend on the nature of the event to which the breach gives rise and do not follow automatically from a prior classification of the undertaking as a “condition” or a “warranty”. For instance, to take the example of Bramwell B, in Jackson v Union Marine Insurance Co ((1874), LR 10 CP at p 142), by itself breach of an undertaking by a shipowner to sail with all possible despatch to a named port does not necessarily relieve the charterer of further performance of his obligation under the charterparty, but, if the breach is so prolonged that the contemplated voyage is frustrated, it does have this effect.
[1962] 1 All ER 474 at 488

In 1874, when the doctrine of frustration was being foaled by “impossibility of performance” out of “condition precedent”, it is not surprising that the explanation given by Bramwell B, should give full credit to the dam by suggesting that in addition to the express warranty to sail with all possible dispatch there was an implied condition precedent that the ship should arrive at the named port in time for the voyage contemplated. In Jackson v Union Marine Insurance Co, there was no breach of the express warranty; but, if there had been, to engraft the implied condition on the express warranty would have been merely a more complicated way of saying that a breach of a shipowner's undertaking to sail with all possible dispatch may, but will not necessarily, give rise to an event which will deprive the charterer of substantially the whole benefit which it was intended that he should obtain from the charter. Now that the doctrine of frustration has matured and flourished for nearly a century and the old technicalities of pleading “conditions precedent” are more than a century out of date, it does not clarify, but on the contrary obscures, the modern principle of law where such an event has occurred as a result of a breach of an express stipulation in a contract, to continue to add the now unnecessary colophon

    “therefore it was an implied condition of the contract that a particular kind of breach of an express warranty should not occur.”

The common law evolves not merely by breeding new principles but also, when they are fully grown, by burying their ancestors.

Continued in next post because I reached the character limit -__-

[lynt.br]

As my brethren have already pointed out, the shipowner's undertaking to tender a seaworthy ship has, as a result of numerous decisions as to what can amount to “unseaworthiness”, become one of the most complex of contractual undertakings. It embraces obligations with respect to every part of the hull and machinery, stores and equipment and the crew itself. It can be broken by the presence of trivial defects easily and rapidly remediable as well as by defects which must inevitably result in a total loss of the vessel. Consequently, the problem in this case is, in my view, neither solved nor soluble by debating whether the owners' express or implied undertaking to tender a seaworthy ship is a “condition” or a “warranty”. It is, like so many other contractual terms, an undertaking one breach of which may give rise to an event which relieves the charterer of further performance of his undertakings if he so elects, and another breach of which may not give rise to such an event but entitle him only to monetary compensation in the form of damages. It is, with all deference to counsel for the charterers' skilful argument, by no means surprising that, among the many hundreds of previous cases about the shipowner's undertaking to deliver a seaworthy ship, there is none where it was found profitable to discuss in the judgments the question whether that undertaking is a “condition” or a “warranty”; for the true answer, as I have already indicated, is that it is neither, but one of that large class of contractual undertakings, one breach of which may have the same effect as that ascribed to a breach of “condition” under the Sale of Goods Act, 1893, and a different breach of which may have only the same effect as that ascribed to a breach of “warranty2 under that Act. The cases referred to by Sellers LJ illustrate this, and I would only add that, in the dictum which he cites from Kish v Taylor ([1912] AC at p 617; 12 Asp MLC at p 220), it seems to me from the sentence which immediately follows it as from the actual decision in the case and the whole tenor of Lord Atkinson's speech itself that the word “will” was intended to be “may”.

What the learned judge had to do in the present case as in any other case where one party to a contract relies on a breach by the other party as giving him a right to elect to rescind the contract, was to look at the events which had occurred as a result of the breach at the time at which the charterers purported
[1962] 1 All ER 474 at 489

to rescind the charterparty, and to decide whether the occurrence of those events deprived the charterers of substantially the whole benefit which it was the intention of the parties as expressed in the charterparty that the charterers should obtain from the further performance of their own contractual undertakings. One turns, therefore, to the contract, the Baltime 1939 Charter. Clause 13, the “due diligence” clausec, which exempts the shipowners from responsibility for delay or loss or damage to goods on board due to unseaworthiness unless such delay or loss or damage has been caused by want of due diligence of the owners in making the vessel seaworthy and fitted for the voyage, is in itself sufficient to show that the mere occurrence of the events that the vessel was in some respect unseaworthy when tendered or that such unseaworthiness had caused some delay in performance of the charterparty would not deprive the charterer of the whole benefit which it was the intention of the parties he should obtain from the performance of his obligations under the contract—for he undertakes to continue to perform his obligations notwithstanding the occurrence of such events if they fall short of frustration of the contract and even deprives himself of any remedy in damages unless such events are the consequence of want of due diligence on the part of the shipowner.

c     The relevant part of this clause is set out at p 477, letter a, ante

The question which the learned judge had to ask himself was, as he rightly decided, whether or not, at the date when the charterers purported to rescind the contract, namely 6 June 1957, or when the owners purported to accept such rescission, namely 8 August 1957, the delay which had already occurred as a result of the incompetence of the engine-room staff, and the delay which was likely to occur in repairing the engines of the vessel and the conduct of the owners by that date in taking steps to remedy these two matters, were, when taken together, such as to deprive the charterers of substantially the whole benefit which it was the intention of the parties they should obtain from further use of the vessel under the charterparty. In my view, in his judgment—on which I would not seek to improve—the learned judge took into account and gave due weight to all the relevant considerations and arrived at the right answer for the right reasons.

I'm fairly sure this is how the case appears in my casebook. It is only an extract because the judgment of the other two judges has been left out. The casebook trims down cases so that they only discuss a certain key principle. For instance, this case involved two major issues: termination for breach and frustration, however, for the purpose of the course we are only interested in termination for breach (frustration is covered by other cases, presumably this is not a good case for principles on frustration) so everything about frustration is left out. In some cases, there are a huge number of different issues so the case extract can be tiny compared with the full-length case.

This also probably looks like a huge wall of text but it is actually one of the shorter cases in the casebook. On paper, it only takes up ~3.5 pages. The average case in Contracts is around 5 pages long, although every so often there are 10 or 20 page cases which can take a while to get through. You also learn to skim read cases. When I read cases, I tend to quickly skim over every paragraph and identify all the important paragraphs or sections. I then carefully read these sections while largely ignoring everything else.

My summary of this case (which was made before semester actually started when I was using a different summary style):

Hongkong Fir Shipping Co v Kawasaki Kisen Kaisha [1962]

Case in summary:
   • Established concept of an intermediate term.
   • If a term can be breached in a number of ways, some trivial, some serious, it is an intermediate term.
   • Termination is justified if the breach is substantial (as opposed to a condition where any breach justifies termination.
   • The important test is:
      ○ Did the breach deprive K of substantially the whole benefit which it was the intention of the parties as expressed in the agreement? - Lord Diplock
      ○ The standard necessary to satisfy this test is VERY high. In this case, even though the ship was unavailable for 8 months, the court held the breach did not justify termination.
      ○ Use this case as a qualitative comparison when applying the test. Compare the breach to the breach in this case., which indicates the threshold where the test is satisfied.

Facts:
   • H chartered a ship to K, promised to 'maintain her in a thoroughly efficient state in hull and machinery during service'.
   • The ship was out of service for some time because it was unseaworthy.
   • K attempted to terminate K.

Issue:
   • Did the failure to maintain the ship in good condition justify termination?
   • Was the term a condition or intermediate term?
   • If the latter, was the breach serious?

Rule:
   • Breach of an intermediate term will justify termination where the breach deprives 'the party who has further undertakings still to perform of substantially the whole benefit which it was the intention of the parties as expressed in the K that he should obtain' (per Diplock LJ)

Application:
   • 'unseaworthiness' can be construed in a number of ways. It may be broken by a trivial or serious defect.
   • Must look at the consequences of breach at time of purported termination.
   • Did the breach deprive K of substantially the whole benefit which it was the intention of the parties as expressed in the agreement?

Decision:
   • Even though H was in breach of K, the breach was not serious enough to justify termination
   • Appeal dismissed.

Case comparisons/Additional Notes/Questions Raised:
   • This is an English case. The equivalent Australian Authority is Koompahtoo Local Aboriginal Land Council v Sanpine

So from the summary it is clear I can use this case as authority for the principle of termination for breach. The case established the important test in the 'Rule' section of my summary. I can apply this same test to a different fact scenario when I want to determine whether there has been a sufficiently serious breach of an intermediate term to justify termination. It also provides a good indication of the magnitude of breach needed to allow termination. The discussion on 'seaworthiness' is also useful for categorising terms as conditions or intermediate terms -> I can use the same principle and ask whether the term can be breached in a number of ways, each varying in severity, to determine how a term should be classified.

[vexx]

Thanks for the replies btw, haha lynt i actually don't understand what that case is on about. Maybe i'm a bit tired and can't think ><

&ninwa, i guess law is not the best idea if i'm wanting to try to transfer into med after first year at unsw where i need a high GPA cos law will bring me down?
that suckks. i just listened to the start of the first law unit 'intro to law reasoning' i think it was called, and it seemed okay..

[ninwa]

lynt I think that's a little too complex for people who've never had any exposure to legal studies before

vexx, definitely do not do law if you're just aiming for a high GPA to transfer. Law is probably one of the more likely disciplines to kill your average.
Also intro to legal reasoning is nothing like actual substantive law units - try criminal law, it's probably one of the easier subjects (and more interesting too, who doesn't like learning about murder and drugs???)

[lynt.br]

Thanks for the replies btw, haha lynt i actually don't understand what that case is on about. Maybe i'm a bit tired and can't think ><

&ninwa, i guess law is not the best idea if i'm wanting to try to transfer into med after first year at unsw where i need a high GPA cos law will bring me down?
that suckks. i just listened to the start of the first law unit 'intro to law reasoning' i think it was called, and it seemed okay..

Introduction to Legal Reasoning (ILR) is one of two introductory law units. It is not a very good representation of what other law subjects will be like because its purpose is to just bring everyone up to speed with our legal system, its history and the basics of how it works etc. It's essentially year 12 legal studies crammed into the first six or so weeks, and then a little bit on statutory interpretation for the rest. Unlike other law subjects, you do not go into the actual substantive law.

vexx, definitely do not do law if you're just aiming for a high GPA to transfer. Law is probably one of the more likely disciplines to kill your average.

ugh, its the other way round for me. My commerce units are the ones dragging down my GPA =[