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I thought I would put together a little section on Clerkships – my experiences and my general thoughts. I also have put together an Example Cover Letter which might assist you if you have never done a cover letter before. I am, by no means, suggesting that this is perfect – but it might help you out in your applications for Clerkships. I also intend on doing a similar type of scenario for CV’s and I hope to get that up here at some point as well.

The following is simply my thoughts on Clerkships and Law generally. You may agree – or disagree – with these general thoughts and feel free to open a discussion thread on the All Things Law in this regard.

Clerkships – The Naked Truth

Law Firm clerkships are an inherent part of becoming a lawyer and they are also perhaps the most stressful.

Clerkships are typically viewed as a nightmare – they are ultra competitive, there are only so many firms, and there are only so many positions on offer. Most of the larger firms typically receive more than 1,000 applications for seasonal clerkships and usually have only 60-75 seasonal positions on the table. This means to even start, your chances are narrowed to around a 6% or 7.5% of even getting a seasonal place. This is then reduced even further for the now so called ‘Professional Legal Trainee’ program where the pool of 60-75 seasonal graduates is reduced to 30 who actually receive graduate offers.

The outcome? A 3% chance of getting a graduate place from the moment you click that ‘Submit’ button when you are applying at firms in comparison to your peers. Picture this as you stare around the lecture theater, only 3 out of every 100 people around you will end up working at a big firm. This is, of course, based on the assumption that you want to go to a big firm. There are positives and negatives to the entire process and in my experience it’s critical that you allow yourself the best opportunity to work in a big firm and in a smaller or mid-tiered firm.

Back when I first started the JD, I sat down with a very senior legal friend who was General Council at one of the largest financial organizations in Australia. His key advice in a nutshell was essentially that …

Continued at All Things Law

I get a lot of people coming to this site and asking me questions about my Law Notes, Papers and a range of law questions in general. To assist with this process and to allow other people to provide their view on a particular subject, clerkship and a raft of other similar questions – I have created a new forum on this site – aptly named All Things Law. The exact address of the forum is through a subdomain on this site – http://law.timdavis.com.au. The premise behind this forum is quite simple – ask a question and hopefully many other students and even senior lawyers from around Australia can add their commentary. More importantly, the responses and the discussion are publicly available for everyone else who is looking for answers to particular questions or for people who are just stuck on a particular concept and need assistance.

The more people that we can get onto the site, the simpler and easier it will be for people to post questions and receive answers. The whole point of originally releasing my Law Notes on this site was to assist people with their study and understanding of the law, and ensure that they aren’t freaking out when exam time roles around. In upholding this concept, I am now trying to extend this in a way which allows any person to post a question and hopefully receive an answer. In this light, I am also looking for some forum Admins to assist me and to generally promote the site through their Universities and the like. You’ll note that it’s free to join and is a simplistic forum which allows for anyone to post questions and answers.

If you are keen to get involved, just drop me a note with some information about yourself and I’ll get you onto the Administration List for the All Things Law Forum. No doubt, this would also look handy on the CV that you are an administrator of what will hopefully become – with a bit of help – a well utilized resource ;)

A satirical poem I wrote about law, meant to amuse those in the industry who understand the funnier narcissistic side of law.

The Art of Law

The market creaks, the money awakes – so long it’s been in slumber,
The M&A teams get prepped; a world is ready for plunder.
The Investment Banker hits the phone, a new deal is to be done,
And so the market is alive again and law is on the run.

New suit, new pants, new shirt and tie – a handshake and smile,
‘What deal can I assist you with today kind sir? – i’ll walk a country mile,
Funds management, restructuring, IP or project finance?
The more I can provide you with, the more that we can dance.’

The money flows, the deals get done,
A toast, a cheers, a bravo!
A new house, a new car, another holiday –
It’s all part of the show.

The regulators twist and turn, the boom is in full swing,
The cash is flowing, companies are so pleased – surely not a time to step in?
‘Free market, free rein, self management – no policies defeated,
Why bother the legislator, when no regulation is needed!’

The margin hits, the bankers bust – they no longer meet the call,
The phone calls start, something’s amiss – don’t tell me of a fall!
It’s now insolvencies turn to shine, the pessimists fine show,
Bankruptcy, debt and receivership – the world does not yet know.

The newspapers hit the streets – the populous roars with anger,
‘It’s the bankers and their god-dam risks – their salaries and their squander!’
The Government screams ‘it’s no time for blame, let’s try and fix the problem’,
They make promises of transformations only to deepen our debt for longer.

The law firm shifts, the parties stop – the champagne fountains halter,
‘It would be unruly of us to continue in this light’ – says one truly pompous partner.
‘As while times get tough around the world, and the deal flow stream dries up,
The insolvency practice is our new success, our knight in shining armour.’

The market slows, production halts and companies shut for good,
The cycle has hit the bottom again, time for a recessionary hood.
And quietly in the background, against all the market changes,
The law firm is engaged again – this time for spades and aces.

The work pours in, the candle burns – insolvency stares down the hours,
While the entire M&A Team sleeps soundly, without so much as even a cower.
The billing rate does not stop, it counts against the clock,
The firm a presence recessionary proof – the law clearly is not.

– by Tim Davis (Feb, 2009)

The balance between the right to free speech and the protection of a person’s reputation are the fundamental underpinnings on which defamation law is based. The root of this balance ostensibly stems from one person’s right to protect their reputation in light of another person’s right to publish comment on it. The judicial system has long upheld the notion that if a person deliberately or maliciously publishes material which adversely and unfairly affects another’s reputation – a cause of action will exist to the person aggrieved. Such a notion has historically only existed at common law and has been fraught with complexities associated with the interpretation of defences to any defamatory cause of action. The recent the introduction of the Defamation Act 2005 has attempted to uniform defamation litigation across all Australian jurisdictions and endeavoured to ensure that defamation cases are trialled with greater consistency. Unfortunately, such an enactment has still left countless unresolved questions with respect to the manner in which litigating parties interpret defamatory meanings and how such meanings are pleaded.

Continue Reading – Defamation – Polly Peck Defense

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The balance between entrepreneurial risk-taking and a director’s corporate responsibility are inversely correlated under current securities law. The success of any corporate enterprise is entrenched in the ability of its executive management to facilitate and incorporate risk as a function of its operating capability. It is antithetical to contend that shareholder value can be created without undertaking some risk as it is a fundamental component of the corporate profit-return ratio. Of course, these principles must be balanced in light of those directors who embrace risk as an extremity and who carelessly and dishonestly destroy value through overzealous adoption. While Australian corporate law has attempted to balance these conflicting notions with the enactment of risk assessment provisions such as the business judgement rule in s180(2) of the Corporations Act 2001 (Cth) – the degree to which the law fosters and encourages directors to undertake structured entrepreneurial risk still remains questionable. The function of a director is enshrined in Chapter 2D – Part 1 – Division 1 of the Corporations Act 2001 (Cth) and their primary duties are to act in the best interests of the company and for a proper purpose. The extent to which this essential requirement is rationalised with unsystematic risk adoption rests on the judicature’s ability to interpret risk and determine the degree to which a managerial judgement was reasonable in the circumstances. Of course, the inherent nature of a judicial inquiry in relation to corporate risk infers that the risk undertaken was excessive and the complainant is disputing the efficacy of it. The Courts consideration in this regard must then fall to an examination of whether a director failed to exercise a reasonable degree of care and diligence in the discharge of his duties.

Continue Reading – Entrepreneurial Risk in Corporate Law

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The unparalleled advance of the Internet in the modern era has lead to vast new opportunities for marketers in the digital realm. The fusion of information technology and access to the Internet has acted as a catalyst for software based algorithms which purport to closely match online media content to highly targeted advertising. The adoption of cookie-based tracking technologies combined with internet protocol address geotargeting has allowed online advertising to be refined to such a degree that relevant and accurate advertising can be matched to any content that any particular Internet user is viewing at any particular time. Evidently, an important facet of this technology is the critical reliance of text based inputs in order to interpret and decipher the particular content being viewed. The fundamental dependence on text interpretation by advertising algorithms has lead to significant judicial confusion regarding the permitted use and manipulation of such text in the context of trademarked terms. The conflicting legal paradigm is the apparent statutory authority provided by trademark legislation which purports to provide the registered owner of a trademark exclusive rights over a sign for the goods and/or services in which it is registered – against the use of such a mark by advertising systems as a contextual input driver in order to accurately correlate the most appropriate advertising content to the inputted term. To further complicate this paradigm, the usage of trademark terms must be categorised into two distinct and separate groupings – those terms which are driven by direct user-input – entered into search engine interfaces which then render search results correlated with relevant search advertising – and those that are automatically extracted by advertising systems from the web page meta data layer. This latter category usually couples a machine algorithmic approach with human assisted text identification – commonly referred to as meta tagging – for the purposes of enhanced content interpretation which augments the advertising matching process.

Continue Reading – The Use of Trademarks in Meta Tags & Sponsored Links

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In any federal system of government, the constitution must regulate the legal relationships that exist between the central repository of governmental power and the regional or provincial levels of government which co-exist with it. In Australia, the regulation of intergovernmental power was first discussed in D’Emden v. Pedder where it was established that the Commonwealth was impliedly immune from any associated state legislation – the reciprocal position being established in Federated Amalgamated Government Railway and Tramway Service Association v NSW Railway Traffic Employees Association. This rationale was subsequently rejected in the Amalgamated Society of Engineers v Adelaide Steamship case and the constitutional interpretation of intergovernmental immunities was redefined by the High Court in the Melbourne Corporation v Commonwealth decision. The scope of immunity after the Melbourne Corporation v Commonwealth decision was poignantly termed the Melbourne Corporation doctrine and it consisted of two distinct limbs – framed by Mason J in Queensland Electricity Commission v Commonwealth. The first limb consisted of a prohibition against State discrimination such that the Commonwealth could not place special burdens or disabilities on the States, while the second limb was a prohibition against the creation or application of laws that ‘[i]mpose restrictions which prevent [the States] from performing functions or impede them from doing so.’ While the first limb of the Melbourne Corporation doctrine was applied by the High Court in the QEC Case, the second limb of the test was not definitively applied until Western Australia v Commonwealth where the High Court rejected Western Australia’s argument as to the validity of the Native Title Act 1993 (Cth) ruling that ‘[t]he Act does not purport to affect the machinery of government of the State’. Additionally, in Re Australian Education Union and Australian Nursing Federation; Ex parte Victoria the High Court again considered the second limb of the Melbourne Corporation doctrine – applying it against the Commonwealth Industrial Relations Commission in upholding the Victoria’s contention that the States should have the power to determine ‘[t]he terms and conditions on which its employees shall be engaged’.

Continue Reading – Constitutional – Austin v Commonwealth

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Importantly, the mortgagee’s registration of your mortgage entitles them to a redeemable interest in your property until such a time as the mortgage debt is discharged. This interest is measured as the difference between the amount of mortgage debt remaining and the value of the mortgaged property, and is termed a ‘mortgage covenant’ which remains affixed to your registered title until such a time as you dispose of the property or the mortgage itself. Typically, the right to enforce this redeemable interest is stipulated by the terms of the mortgage contract and a contravening event which triggers a breach of it. In the current circumstances, you defaulted on your agreed mortgage contract repayments from September 2008 and this has resulted in the mortgagee issuing you with a notice of default. Under s76(1) of the TLA 1958 – the mortgagee must provide you with a notice, in writing, informing you of your default and respective ways in which you can rectify the breach in accordance with s80(3) of the Consumer Credit Code (Vic) .

Continue Reading – Advanced Property – Power of Sale

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A transaction which is encompassed within the details outlined in 2.7 has been explained in detail via a two-trust mechanism in Barclays Bank Ltd v Quistclose Investments Ltd. In this case, the Court stated that a primary trust is formed to carry out a lender’s stipulated instructions as to how the loaned monies are to be used coupled with a secondary trust which would take effect if the primary trust failed. Modern law has since favored a singular trust scenario created through an express or resulting trust in favour of, and protecting the intention of, the settlor. The degree to which an express or resulting trust arises must be determined through intention, and if the intention is to benefit a third party through some contractual arrangement between the settlor and the trustee – Gummow J commented in Re Australian Elizabethan Theatre Trust that the mutual intention of the settlor and the trustee should be examined in combination with ‘the essence’ of their bargain.

Continue Reading – Trusts – Quistclose Trusts

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A fundamental rule of evidence involves determining the admissibility of evidence by balancing the probative value of that evidence and the prejudicial effect of admitting it. In R v Swaffield the High Court addressed this fundamental issue in the context of voluntary confessions and the degree to which they are admissible in respect of voluntariness, unfairness and public policy considerations. Central to the High Court’s ruling in this case, was whether a voluntarily confessional statement – made to a person whom the confessionalist did not know was a police officer or a person acting for the police – could be admitted into evidence in a trial against the confessionalist for an offence relating to the statement. Most importantly, the High Court considered this in light of the confessionalists exercised right to silence. Toohey, Gaudron and Gummow JJ delivered a joint judgment in respect to the facts in this case holding that – following a determination that a confession was voluntary, the judge should firstly consider the discretion to reject such a confession on the grounds of unreliability before balancing this consideration on the principles of unfairness and public policy.

Continue Reading – Evidence – Voluntary Confessions

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