The Importance of the Magill Case in the Area of Inter Spousal Torts - Essay Example

Writing an Academic Paper Introduction: In writing a research paper, one of the first steps is to find out a significant amount of information on a particular topic, which can then be used as a basis for analysis. Important points and quotations can be identified, which may be used to consolidate the position or argument that the Paper is advocating. These notes can then be used as the basis for a write-up, providing a succinct research question or statement at the beginning of the Paper, with explanations and analysis followed by a conclusion. In this Paper, I am examining how I will go about gathering material and analyzing material for two topics (a) Magill v Magill and (b) Taking legal charge over a book debt. Magill v Magill is a recent legal case. Therefore, my research efforts would be targeted towards websites where I could read the case and the judgments that were tendered, as well as articles in law reviews dealing with the implications of the case. I would also refer to text books that contain materials on the general subject matter of the case, in this case paternity and tort. In the case of a book debt, I would first read financial websites and articles to gain an understanding of the subject and then look into legal websites to find articles dealing with the subject matter and my notes drawn from these sources would form the basis for my arguments and conclusions. Body: Topic A: Finding research materials: I would first of all research Magill v Magill(2006) on Google. This would provide me with an idea about the case itself. The link http://www.canadiancrc.com/Magill/ Magill_High_Court_Media_release_09NOV06.htm provides me information which lets me know that the case of Magill is an Australian case which deals with paternity fraud and the tort of deceit. The CCH website deals primarily with business law while the LBC website has materials primarily on housing law, therefore I would not look into these websites, where it is unlikely that information on torts could be found. However the Australian legal website is likely to be a good source for specific information about the Magill case, as also the Lexis Nexis and/or Westlaw websites. On the Lexis Nexis Academic website, I go to the Legal link. The search terms I enter are “Magill v Magill” while the sources I specify would be the International Law Reviews combined. However, this search also pulls up several articles on another Magill case which concern intellectual property. So I refine my search by entering Magill v Magill within quotes, and requiring that the word “tort” be found in the documents retrieved, in order to streamline the search. This provides me with a useful article from the Southern Methodist University Law Review by Joseph McKnight1 that exhaustively discusses the case. The search also pulls up another article in the Cardozo Arts and Entertainment Law Journal2 that makes a reference to the Magill case among others in stating that matrimonial property division needs to be just fair and equitable, however this may not necessarily mandate an equal property division. On the Australian Legal Information Institute website, I type in Magill v Magill without quotes into the search bar. This provides me with transcripts from the case (HCA 163) as well as the text of the full judgment.3 In writing my Paper, I would also refer to textbooks in tort law, written by authors such as Epstein’s book4, which also contains cases in tort and explanations and discussions relating to it. Additionally, I would also look up Australian Government websites in order to read statutory guidelines provided in the area of the tort of deceit. Reading up the full text of the case shows me that these are the following issues in the case. The major issue is whether the tort of deceit can be applied to the marital relationship in the context of false representations of paternity. DNA testing subsequently revealed that two children were not the husband’s biological children, and the husband claimed damages against the tort of deceit for loss of earnings and income, as well as pain and suffering. The tort of deceit was a major issue in this case, as also inter spousal immunity in tort, as well as statutory regimes as it impacted upon the Family Act of 1975 and implications to public policy. Moreover, the decision of the Court is very significant because it allowed the husband to claim damages for the tort of deceit about paternity during the term of the marriage. McKnight’s article highlights the importance of the Magill case in the area of inter spousal torts. He points out that before the case of Bounds v Caudle, the doctrine of spousal immunity often limited recoveries on this grounds. However, this has resulted in a tendency among lawyers to believe that interspousal torts is equivalent to that among strangers. However, the law needs refinement in this area, hence the case of Magill is very important in establishing parameters that could specifically apply to the matrimonial relationship. In particular, the question of what constitutes community property and whether hiding assets in anticipation of divorce will be relevant in assessing damages in tort. This article is also very useful because he has discussed premarital agreements and tracing of accounts. Relevant provisions of the Family Act which allow recoveries for spouses in tort are outlined under sections 119 and 120 of the Family Law Act of 1975, as identified in the judgment. I would this prepare my paper on the following basis: ` The sources I would use would be Epstein’s text book, the law websites mentioned above as well as the articles and a full reading of the Family Act of 1975, with particular attention to Sections 119 and 120. I would also try and pull out other relevant cases that I could use as a basis of comparison in this case, in order to show how the tort of deceit has developed over the years to also extend to spouses. I would also examine in more detail some of the cases that have been cited by the judges in the actual decision that was rendered on the case. I would provide a brief introduction in my paper , focusing my subject on the development of the tort of deceit in the marital context. The analysis section would include a description of the facts and the decisions reached. The basis of my analysis would cover all the relevant issues identified above as well as the assessment of damages. This material would form the basis of the conclusions that I would derive in the final section of my Paper, where I would highlight the significant of this case in the area of interspousal tort. It establishes a precedent of sorts in allowing damages to the husband in an area of law that is a delicate one. However it is very relevant and applicable in the present day context, where economic implications are becoming increasingly important and where divorce, child support and property laws are being constantly amended away from the earlier predisposition to award large payments to wives for maintenance on the basis of their primary caretaker roles. I would highlight how this case adds to the pool of recent cases that are increasingly recognizing the rights of fathers. 2. Taking legal charge over a book debt: A general search on Google on the subject of taking legal charge of a book debt yields two useful documents. One is the report on a High Court decision on taking over possession of book debts5. The case in question was the in the matter of Oval 1742 Limited (In Creditors Voluntary liquidation) The Commissioners of Customs & Excise v The Royal Bank of Scotland plc. In this case, the High Court ruled that possession of book debts were taken over by the bank subject to a floating charge where the bank had agreed to release the charge in return for some portion of sale proceeds being paid to it. In this English case, the Companies Act of 1985 and the Insolvency Act of 1986 were applied and there was a distinction made between that part of the book debts which could be held on a fixed charge by the financing bank and which part of the debts could not. Hence those debts that were caught under Section 175 of the Insolvency Act would require that a Company’s preferential debts be pad in priority to all other debts to other financial institutions. Therefore this case sets out some useful guidelines in an area of law where there is a dearth of case law authority. Another useful reference I find is about the case of National Westminster Bank plc v Spectrum Plus Limited6 which is a pervasive authority in Australia despite being an English case7. This case highlighted the fact that it may be difficult for a financier to take over fixed charge of book debts from a legal standpoint, except in those instances where a day to day accounting of expenses and usage of finances provided is not required by the bank/financier. The Spectrum case has set out charges over book debts as floating charges, irrespective of however the parties themselves have classified it. I further research into the Spectrum case on Lexis Nexis website and under the Bankruptcy law articles, by typing in “Book debts” into the search bar I am able to locate an article by Lauren Pogue.8 This also raises the issue of the provisions of the Corporations Act in Australia. This would be one of the areas of my research since it sets out laws for business entities in Australia and also covers provisions on insolvency of corporations, which may indicate legal provisions for dealing with book debts. In researching the Corporations Act further, I would refer to the CCH and LawLex websites. On the Lawlex website, under the premium research link, I would type in the Corporations Act and select the Commonwealth as the jurisdiction. This pulls up the entire text of the Corporations Act 2001. The Act is also available on the CCH website. I obtain the information that in Australia, the normal practice would be to allow a financier to assume a fixed charge over the book debts of a business, with the proceeds of the debts being deposited in an account held with the chargee. This places a restriction on the business from transferring or obtaining securities against those debts, although the business may utilize those funds during the normal course of its business. The account is to be blocked to the extent that the chargee has control over it. However, there is a lack of clarity in these legal provisions, since the normal practice in allowing a charger/business to utilize those funds creates what is akin to a floating charge rather than a fixed charge. This dichotomy over whether fixed or floating charges are created in the assumption of legal charge over a book debt is one that has not yet been clearly resolved through case law. Therefore a comparison with US law is useful in terms of assignment of fixed and floating charges over book debts. This is a very useful article, which also provides a detailed discussion of the different ways in which mortgages, securities and book debts are dealt with in UK and England, as well as providing descriptions of what exactly constitutes fixed and floating charges. Since Australian law is derived largely from English common law, the ramifications of English law in this area, as highlighted through the above two cases are important in the legal assumption of book debts in Australia. She points out that there are no floating charges in the United States, rather there is recognition of a security interest, where the borrower can sell the goods to extinguish the security interest, but the lender’s interest continues in any proceeds resulting from the sale. In writing the Paper, I would therefore provide an introduction about fixed charges and floating charges and how such charges would be assumed in the context of Australian law, by drawing reference to important cases in English law which forms the basis for practice in Australia. In my write up, I would therefore divide my Paper into three distinct parts. The research question would be centered around examining the ambiguities in determining the nature of the charges that are to be determined over book debts. I would question whether a fixed charge should be allowed at all, in view of the fact that in practice, floating charges impose ambiguity in the utilization of debt proceeds. The introduction to my essay would offer some descriptions of the basic concepts and also outline differences in procedure between the US and Australia which operates on the basis of English common law. The main body of my essay would comprise a detailed analysis of book debts, including mainly, the provisions of law in Australia by way of the Corporations Act of 2001, while also dealing peripherally with the Insolvency Act of 1986 and the Companies Act of 1985 with recent amendments introduced in the UK. It would also include a discussion of the major cases that have been detailed above and the articles mentioned earlier. I would point out the lack of clear guidance that exists in the law on the procedure to handle book debts. I would also point out that there is a need to introduce flexibility in the use of assets accruing against the book debts and there must be a clear distinction on the extent to which fixed or floating charges are to be imposed on the debts. I would point out that the case of Oval 1742 limited has provided some limited guidance in that debtors of preferential debts are to be paid before all other debtors, however further refinement may be required in the law. As a part of my conclusions, I would provide a comparison with the laws and practice on book debts in the United States and the flexibility that is allowed to the businesses in disposing of their assets and securities while lenders are able to retain alien on the sale proceeds. As opposed to this however, the practice of blocking the assets against the book debts in the UK and Australia through a fixed charge produced ambiguities, which are being resolved in practice through the mechanism of the floating charge. Conclusions: To write this Paper, my sources would be a combination of legal websites, ordinary websites that can be pulled up on Google, case laws as well as textbooks and articles from journals. My reading from textbooks and websites on Google would be directed towards gaining a preliminary knowledge on the topics, although I would also utilize any good quotes I could find which would advance the arguments I am offering in my Papers. I would focus upon a specific research question or issue and direct the arguments towards analyzing or researching that issue. In the Magill case, my focus would be upon examining the significance of the case in the context of future developments in law. * “Charges over book debts: only a floating charge?” [online] Retrieved September 24, 2007 from: http://www.claytonutz.com/news/controller.asp?nid=754 * Epstein, Richard, 2000. “Cases and materials on torts (Casebook)” Aspen Publishers * Magill v Magill [online] Retrieved from September 23, 2007 from: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2006/51.html?query=title(Magill%20%20and%20%20Magill%20) * McKnight, Joseph W, 1999. “Family Law: Husband and Wife.” 52 Southern Methodist University Law Review, 1143 * National Westminster Bank plc v Spectrum Plus Limited (2005) UKHL 41 (30th June 2005) * Pogue, Lauren, 2005. “The Spectrum Plus case: Fixed or floating charges over book debts in England?” Banking Markets: 421-442 http://www.mayerbrown.com/financialrestructuringuk/publications/article.asp?id=3226&nid=5330 * “Sharing the spotlight: Equitable distribution of the right of publicity.” 13 Cardozo Arts and Entertainment Law Journal 917 Read More