Interpreting Statutes

Transcription

1 Interpreting Statutes 1) Apply the literal rule are there any ambiguities to be cleared up? 2) Use intrinsic aids A. structure of the statutes B. definitions within legislation (interpretation section) C. means (completely exhaustive) and includes (non-exhaustive) D. deeming provisions (extends the meaning of a word) E. mandatory (e.g: shall, must) and directory provisions (e.g: may) F. provisos (creates an exception to the previous statement) G. use of subject to (one part of legislation is given priority over another) H. use of and & or ( and unites, or offers an alternative) 3) Use golden rule in cases of clear absurdity/injustice Lord Diplock test: does it fit the purpose as a whole, was it an inadvertent omission by parliament, would the words be approved by parliament? 4) Look at the context rules A. noscitur a sociis (context rule, use rest of sentence to generate meaning) B. ejusdem generis (class rule) C. expresso unius (where matters are expressly mentioned, there is a presumption that all others are excluded, if parliament made a list of things, we assume they left all other things out on purpose) 5) Use the purposive approach Interpretation Act 1999 the meaning of an enactment must be ascertained from it s text and in light of it s purpose - courts MUST follow. Think about what parliament was trying to achieve. Use the purpose section and hansard. If the act is clear, interpret words liberally to give effect to original purpose. 6) Conclusion, does the act still apply? Other approaches? - using a dictionary - terms of art (range of meanings of a word? use the one that suits the context) - change in meaning over time (everyday meaning of a word is preferred unless absurdity) What is the ratio? it is the reason for a decision, the principle of law that emerges from the case. You can derive it from the facts and the decision. FACTS + DECISION = RATIO 1) IF (the facts) 2) THEN (the decision) 3) BECAUSE e.g. a Pl who knows the risk of injury but agrees, either expressly or impliedly, to waive any claim arising from the carelessness of another party cannot claim damages for injuries received as a result of the other party s negligence. Issue -> Under (law)... does etc. Rule -> statement of the rules pertinent in deciding the issue stated (case precedent and statute). Application -> applies the rules developed in the rules section to the specific facts of the issue at hand and explain or argue why a particular rule applies or does not apply in the case presented. Argue for both sides and then come to a conclusion. Conclusion -> directly answers the question presented in the issue section, provides final answer.

2 Statutes Interpretation Act the meaning of an enactment must be ascertained from it s text and in light of it s purpose Fair Trading Act s9: persons in trade (trade = business context, has to be a regular thing, can be secondary business) can t engage in misleading/deceptive conduct. (civil only) - s12: claim business makes about a product must be substantiated - s13: no person in trade can make a false or misleading representation (all about how you position the product and advertise it to consumers) (Consumer Law Reform Bill = can only contract out of FTA if in trade, in writing, fair to both parties) Consumer Guarantees Act idea of what a consumer is (depends on the bought product) - not covered if goods are resupplied in trade, used in manufacture, used to repaid other goods - all around different guarantees for goods (goods must be acceptable, fit for purpose, comply with their description and sample model, have available repair parts, and suppliers must honour their express guarantees given) - also, guarantees for services (reasonable skill and care, fitness for purpose, time of completion, price) - if failure can be fixed > repair replace refund (supplier) - no fix? > replace refund or repair elsewhere (consumer) - defect of substantial character? refund replace - consequential loss? loss is foreseeable = claim for that loss Commerce Act purpose is to promote competition for the long-term benefit of consumers within NZ - s27: outlaws anti-competitive arrangements that substantially lessen competition - s30: outlaws price-fixing - s36: outlaws certain conduct by firms which possess substantial market power - s47: restricts ability of firms to acquire market power via acquisitions and mergers - not criminal offence, penalties apply 10M+ - Commerce Commission polices the CA1986 and FTA1986, takes action in breaches - how to determine what the market is? geographic area and relevant g/s (viable alternatives for consumers). Sale of Goods Act nd sale of stolen goods can be valid, if purchaser is a bona fide purchaser of value without notice. Personal Properties Securities Act provides statutory regime for registering security interests over personal property, an interests-based register. - register is indexed according to names of natural persons and organisations - priority exists. - doesn t tell us who owns the property. Real Estate Agents Act money paid to real estate agent must be paid into this account until property goes unconditional, then the money is paid to the seller. The money can be used for no other purpose. The account must be a separate trust account.

3 Property Relationships Act judge can set aside a trust that excludes an ex-spouse in order to divide assets fairly. Insolvency Act gifts made up to 2 years before bankruptcy can be clawed back by the official assignee, up to 5 years can clawed back unless can prove they were solvent at time of transfer. Property Law Act allows creditors to challenge dispositions of property intended to prejudice them, but only when debtor was insolvent or likely to be. Copyright Act protects rights of owner s copyright (life + 50 years). - s14: copyright is a property right, copyright exists within original (not copied) works - s16: owner has the right to copy, right to perform work, right to make adaptation. - s18: creator has to be a NZ (or recognised country of Berne or Universal Copyright conventions) citizen or permanent resident. Trademarks Act gives you the right to put your mark on your g/s (branding) - has a registration system (established by the act) which is administered by IPONZ - sets out the requirements of a registrable trademark. - application cannot be made in bad faith, otherwise - revocation Crimes Act person can be prosecuted for breaching trade secrets Privacy Act NZ followed OECD recommendations. - contains the 12 privacy principles. - based on the collection, use, and disclosure of personal info and data by agencies, rules about what they can and cannot do with above info. - sets up the privacy commission & commissioner, who can issue codes of conduct for particular business sectors - News media, parliament, tribunals, royal commissions, intelligence services are excluded from the privacy act. - focuses on mediation and a complaints procedure, but if it is unsuccessful, go to the Human Rights Review Tribunal Unsolicited Electronic Messages Act 2007 (SPAM Act) -s3: prohibits unsolicited ing (consent required from recipient and unsubscribe functionality). - Breach? no criminal liability, but statutory civil liability event enforced by the dept. of internal affairs.

4 Proving a Valid Contract A valid contract requires: 1) OFFER - An indication that a person is willing to enter into a contract on particular terms - An offer can be made to the world at large CASE: Carlill v Carbolic Smoke Ball Company (a valid contract) - Ads are usually seen as invitations to treat (not an offer) CASE: Pharmaceutical Society of Great Britain v Boots Cash Chemist (item in retail = inv2treat) - Offers can only be accepted by the offeree, and the offer must be communicated to the offeree - An offer can be withdrawn at any time prior to acceptance, revocation must be communicated 2) ACCEPTANCE - An indication that a person agrees to be bound by the precise terms of the offer - Must communicate acceptance to the offeror - The offeror cannot impose silence as a means of acceptance - REJECT offer? ends the offer completely - COUNTER offer? ends the original offer completely - REQUEST FURTHER INFO? the original offer still stands - The postal rule: when postage occurs is when acceptance takes place 3) LEGAL INTENTION - For a contract to have legal effect, all parties need to intend to create legal relations - In a business context, it is assumed unless there is clear evidence of contrary intention 4) CONSIDERATION - The price paid by one party for the other s promise to do something < there must be an exchange - What counts as valid consideration? A benefit or detriment (are they better off / you worse off as a result?) Must be real, have recognised value Peppercorn principle: law is unconcerned with fairness of the trade Past consideration is not valid consideration (work precedes promise) - Having a deed, signed and witnessed, avoids the need for having consideration to create a contract YOU ALSO REQUIRE: - Genuine consent: (not signed under duress, has a mistake been made that affects true consent?) - Capacity: (of legal age and sound mind) - Legality: (contracts around illegal affairs are not valid) BREACH OF CONTRACT - If one of the parties doesn t hold up their end of the bargain, other party has right to legal redress - Compensation Expectation Loss: puts the non-breacher in the position if the contract had been fulfilled Reliance Loss: puts the non-breacher in the position if the contract had never existed Specific Performance: force the party to complete contract (e.g: a land or unique item sale) Injunction: prevent party from doing something There are problems around quantification of compensation though - A serious breach can end a contract altogether (Contractual Remedies Act 1979)

5 Consumer Law FAIR TRADING ACT Section 9 (CIVIL) No person shall in trade, engage in conduct that is misleading or deceptive (or likely to be) In trade? Df must be acting in business context, doesn t include one-offs, doesn t have to be their main business Misleading/deceptive conduct? 3 step test: 1. would the conduct confuse target market? 2. was the Pl misled/deceived by conduct? 3. was it reasonable for the Pl to have been misled/deceived? Puffs are not caught under s9 (careful if it is very descriptive) - Section 12 (CRIMINAL) a claim a business makes about a product must be substantiated (e.g: clinical tests prove) - Section 13 (CRIMINAL) no person in trade can make a false or misleading representation (around supply or promotion) - Other unfair trade practices Bait Advertising Offering gifts/prizes (without intention of providing) - Defences? a reasonable mistake a reasonable reliance on info supplied by third party act was outside Df s control and Df took reasonable precautions and exercised due diligence to avoid breach - Contracting out of the FTA? after Consumer Law Reform Bill is passed in June, only can contract out of FTA if: 1. agreement in writing 2. both parties are in trade 3. binding provision is fair/reasonable to both parties CONSUMER GUARANTEES ACT Who is a consumer? purchaser is considered a consumer is the g/s purchased are for everyday use - Businesses are not covered under the CGA if: 1. g/s are resupplied in trade 2. g/s are consumed in process of manufacture 3. goods are used to repair other goods or fixtures on land - Can only contract out those in trade from CGA - Guarantees for goods: Goods must be acceptable, fitness, compliance with description and sample model, available repair (parts), honouring of guarantees - Guarantees for services: reasonable skill and care, fitness for purpose, time of completion, price - If a failure can be fixed, supplier chooses: repair, replace, refund - If a failure cannot be fixed, consumer chooses: repair elsewhere, reject goods and ask for refund, repl. - If a defect is of substantial character? consumer: reject goods, refund, replacement - Consequential loss? if loss is foreseeable, consumer can claim for recovery of that loss (elec blanket)