Maddox Smith Staff asked 4 years ago

Industrial Law
Bruce Hewitt was asked by Sally Stapleton to work as a boundary rider on her 250,000 hectare farm, ‘Winton’ in far west New South Wales. Boundary riders are ordinarily required to travel over many weeks along the boundary of a property to check and maintain all the fencing, which includes using a device known as a ‘wire strainer’. Wire strainers are used for tensioning and repairing wire fencing, and in their normal operation, this device can carry pressure of several tonnes of weight. Maintaining the fences in good repair is essential to the management of Winton farm, where Sally conducts a large cattle grazing business. Sally told Bruce he would have to sign a ‘contractor’ agreement (which he did), stipulating that their relationship was that of a principal and independent contractor and not employer and employee. However, Sally provides accommodation on the remote property for Bruce to stay in, all necessary tools and equipment (including but not limited to the wire strainer, fencing pliers and wire) and maintenance of all tools and equipment, and a quad bike for Bruce to use. She also provides Bruce with a smart uniform bearing the ‘Winton’ farm logo which Bruce must wear. At Bruce’s request, he brings his reliable stock horse, Tex with him to move about the farm on and his own saddlery and tack. Sally told Bruce she would credit his bank account fortnightly with the agreed contracted sum of $1,000.00 per week. Bruce was to make his own arrangements for the payment of personal income tax. Sally also told Bruce that he must take annual holidays during the November/December dry period but apart from that he was free to choose how much travel to undertake in any given week and the order in which to patrol the borders of the property to check and maintain the fencing. She also said that Bruce was not required to report to her except on an annual basis. Last month, Bruce was repairing a fence on the southern border of the property using a new wire strainer provided by Sally. Unbeknownst to Bruce the new wire strainer was defective and it broke under the intense pressure, causing a piece of wire to strike him in the eye. As a result of the force, Bruce lost his left eye. He does not have any insurance to cover this, as he thought he would be able to recover workers compensation as an employee if he was injured.Page 3 of 4 PART A – PEER REVIEW ACTIVITY STEP 2: Peer Review Instructions: You are the partner of a medium sized law firm, Hunt & Associates in regional NSW. Two of your junior solicitors have undertaken preliminary research at your request in relation to a matter concerning your long standing client, Bruce Hewitt who sustained personal injuries whilst repairing a fence at work. This research and outline of the main legal issues will form the basis for a written advice to Bruce. In the interests of mentoring your junior staff, you are to offer feedback based on the following five (5) criteria:  Submission includes a concise summary of the material facts  Demonstrates a logical approach to the main legal issues, forming a solid basis for further analysis  Refers to an important decided case relevant to the main legal issue(s), covering the three matters outlined in (a)-(c) of your memo  The overall quality of written expression and presentation  References are correctly cited in accordance with the AGLC (3rd ed, 2010) You are to provide a grade for each criterion out of 2, applied as follows: 2 = criterion has been met 1 = aspects of the criterion have been met 0 = criterion has not been met The purpose of this task is to assist your junior solicitors with structure, writing skills, referencing style and in generally approaching the main legal issues. You are not to comment on substantive matters; rather focus more on form. For example, in relation to the second mentioned criteria, ‘Demonstrates a logical approach to the main legal issues…’ your comments will briefly indicate whether you believe your junior solicitor has shown a solid basis for further legal analysis. In other words, is there an obvious legal approach to the issues? Can you identify how your junior would proceed in advising the client? Your comments should be brief, constructive and well considered. The quality of the peer reviews you provide will be assessed on the following criteria:  Does the peer review assessment accurately address the review criteria?  Is the feedback constructive and positive?  Does the student provide a considered peer review?  Is the review well written?  Has the student demonstrated respect and professionalism towards his or her fellow students?Page 4 of 4 PART B – ESSAY Instructions: Refer to the notes taken by the Partner of Hunt & Associates, Lawyers following the conference with Bruce Hewitt last week (page 2).