Legal Tip 57: Legal Research - How to do it

Legal Research: How to do it


Lawyers are just glorified librarians. They have no special skills but through training and practice generally know where to look to find information faster than the average person.


When you have a question it is just a matter of trying to work out which legislation applies. If you have a question about stamp duty for example you may know that Duty is state based legislation and the jurisdiction is based on where the property is (and there could be other jurisdictions too). So if it is a question about stamp duty on a property located in Victoria you would simply google “Duty act Vic” and that would bring up some legislation in the first few results. I always like to use the ‘Austii’ site for legislation as it is easy to search and to link.


So if you were after information about stamp duty on transfers between spouses on property in victoria you would first get the Duties Act Vic up and on the content page, http://www.austlii.edu.au/au/legis/vic/consol_act/da200093/, you should do a search for the word “spouse” and you will find nothing. But you know that all states will have some sort of exemption or concession for transfers between spouses so it is just a matter of searching for different words “marriage”, “de facto”, “relationship” etc. Relationship will give you two hits for this word at s 43 and s 44. Open it up and have a read:

http://www.austlii.edu.au/au/legis/vic/consol_act/da200093/s43.html

http://www.austlii.edu.au/au/legis/vic/consol_act/da200093/s44.html

In this case if there is no marriage or relationship breakdown s 43 will be the important one to read.

You will notice the heading is about marriages and domestic relationships. You may wonder does a defacto relationship qualify as a domestic relationship. Don’t worry about the heading of the section but read the content. See ‘spouses’ is underlined so you can click on that word and find the definition. If the word is not defined in the act then the common meaning of the word or phrase will apply.Clicking on spouse will show you only people who are married are referred to as spouses in this act. Other acts will define spouses differently so dont get too hung on on this. Then click on ‘domestic partners’ and it will take you to s 3 which defines a domestic partner as one who is in a domestic relationship. Pain in the arse your say, as you now have to click on this phrase to find it means the definition - not that it specifically includes same sex couples, but even if it didn’t mention that same saex couples would meet the definition. http://www.austlii.edu.au/au/legis/vic/consol_act/da200093/s3.html#domestic_relationship

A lot of people ask me if there is anything written on spousal transfers - all you need is to look at the law itself. the law is the primary source and everything else is secondary commentary.

That is how you can research something simple such as this. But just keep in mind you don’t know what you don’t know and it is worth confirming anything you do find with a lawyer who has experience in the area in question. After all if you get the stamp duty wrong on a $1mil purchase it could cost you around $50k or more.

You should then start to consider the related aspects of transferring. This is really just common sense, at first, and then a legal question later. If you are transferring as a tax strategy then you need to consider tax law. But you also need to consider estate planning - ownership changing means different treatment on death of the owner, bankruptcy of the owner, incapacity of the owner etc.

And remember - you don't know what you don't know.

 

There is a difference between reading what the law says and and interpreting what it means though.

 

I'm not even a good librarian, let alone glorified.

 

Yes, that is why you still need to seek advice from those experienced in the subject.

 

My first thought Terry was thanks alot, Attorney Google (there is just no good equivalent of Dr Google for Lawyers) creates enough headaches with people reading parts, thinking they understand and then telling us what to do. (I have mate who is a GP who regularly gets -"are you sure, cause when I researched my symptoms on Google it sounds like I have ......)

But given that you have actually sent them to a great link and the PC'ers as a whole seem to be good researchers then I'll forgive you

 

yes it is potentially dangerous - but people are going to do it anyway. Just a little help pointing in the general direction.

 

Now we just have to read the case law that tells us what all those Acts are talking about. Was that Obiter Dictum or Ratio Decedendi?

 

I have no idea - I haven't thought about those since first year law school