Cornerstones of Australian Law
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1 Cornerstones of Australian Law Third edition Callie Harvey
2 Copyright 2009 The Tilde Croup Table of Contents Table of Contents Part A - The Australian Legal System Chapter 1 - The basis of Australian law 3 Terms & concepts checklist 3 Introduction 4 Non-legal rules 4 Laws 5 Statute and common law 7 Criminal and civil law 10 Characteristics of effective laws 18 Terms & concepts review 19 Consolidation questions 22 Discussion questions 23 -Tlie Australian parkairantaiy system 34 Terms & concepts checklist 24 The history of Australian federation 25 The structure of parliament 27 Australia's parliaments 28 The separation of powers 39 Representative and responsible government 41 The powers of parliament 42 Limitations on Commonwealth power 45 Limitations on state powers 45 Overcoming constitutional limitations 46 Delegated legislation 51 Parliaments and legislation 55 Private Members' Bills 59 Acts for different purposes 60 Terms & concepts review 63 Consolidation questions 69 Discussion questions 71 Chapter 3-The hierarchy of courts 72 Terms & concepts checklist 72 The court hierarchy 73 The need for the court hierarchy 73 Types of jurisdiction 74 The Commonwealth hierarchy of Australian courts 75 The hierarchy of Australian state and territory courts 80 Cross vesting 88 Strengths and weaknesses of the courts 89 Alternative dispute resolution bodies 91 Alternative dispute resolution methods 96 Legal regulatory bodies 98 Terms & concepts review 99 Consolidation questions 101 Discussion questions 102 Chapter 4-How courts make laws 103 Terms & concepts checklist 103 Laws made by courts 104 Common law 104 *-
3 Cornerstones of Australian Law Doctrine of precedent 104 Statutory interpretation 113 Terms & concepts review 122 Consolidation questions 123 Discussion questions 124 Chapter 5 - The adversarial trial model 125 Terms & concepts checklist 125 The adversarial system 126 Roles and rules in the adversarial system 126 Criminal law 132 Civil law 141 Terms & concepts review 146 Consolidation questions 148 Discussion questions 149 Part B - Torts Chapter 6 - Tort of negligence 153 Terms & concepts checklist 153 Defining tort 154 Negligence 154 Elements of negligence 157 Common law principles 158 Vicarious liability 175 Limitation period 176 Statutory provisions 178 Terms & concepts review 184 Consolidation questions 187 Problems 188 Chapter 7 - Defamation, nuisance and trespass 190 Terms & concepts checklist 190 Defamation 191 Internet implications: Defamatory material posted online 201 Nuisance 202 Trespass 205 Terms & concepts review 207 Consolidation questions 209 Problems 210 Part C - Contract Law Chapter 8 - Contracts I 213 Terms & concepts checklist 213 What is a contract? 214 Classifications of contracts 214 Invalid contracts 215 Valid contracts 216 Intention to create legal relations 217 Agreement - offer and acceptance 220 Consideration 237 Terms & concepts review 243 Consolidation questions 245 Problems 246 Copyright 2009 TV Tilde Group
4 Table of Contents Chapter 9 - Contracts II 248 Terms & concepts checklist 248 Contractual capacity 249 Terms of a contract 258 Legality of object 274 Terms & concepts review 278 Consolidation questions 280 Problems 281 Chapter 10 - Contracts III 283 Terms & concepts checklist 283 Termination or discharge of a contract 284 Frustration of contract 287 Breach of contract 289 Remedies for breach of contract 290 Internet implications: Online contracts 292 Terms & concepts review 293 Consolidation questions 294 Problems 295 Chapter 11 - Mortgages and leases 299 Terms & concepts checklist 299 Property 300 Personal property 302 Real property 304 Title to land 316 Subdivisions 324 Mortgages 324 Terms & concepts review 331 Consolidation questions 333 Problems 334 Chapter 12-Insurance law 335 Terms & concepts checklist 335 Insurance contracts 336 Sources of insurance law 336 The parties 338 Formation of an insurance contract 338 Elements of insurance contracts 340 Indemnity contracts 341 Insurable interest 345 Utmost good faith 347 Subrogation 350 Australian Prudential Regulation Authority (APRA) 352 Dispute resolution 353 Insurance agents and brokers 354 Legislation for General Insurers 356 Legislating foreign insurers 356 Terms & concepts review 357 Consolidation questions 359 Problems 360 Copyright 2009 The Tilde Group
5 Cornerstones of Australian Law Safe of goods 363 Terms & concepts checklist 363 Evolution of the Sale of Goods Act. 364 Contract of sale of goods 364 Capacity to buy and sell 367 Sale and agreement to sell 367 Ownership of property 368 Transfer of title by a non-owner 371 Performance of a contract 373 Implied terms Remedies for breach of a contract of sale for goods 379 Vienna Sales Convention 382 Terms & concepts review 383 Consolidation questions 385 Problems 386 Terms & concepts checklist 388 Consumer protection legislation 389 Commonwealth and state consumer protection legislation 390 Misleading and deceptive conduct 395 Internet implications: Misleading and deceptive conduct 403 Specific false representations 403 Unfair practices 407 The Australian Competition and Consumer Commission (ACCC) 412 Consumer product safety and consumer product information 412 Manufacturer's liability and product liability 414 Terms & concepts review 416 Consolidation questions 418 Problems 419 Terms & concepts checklist 421 Introduction to restrictive trade practices 422 The legislation 422 The constitutional framework of the Act 422 Effects of the Competition Policy Reform Acf\995 (Cwth) 423 The Trade Practices Act 197'4 and restrictive trade practices 424 Enforcement and remedies 437 Industry codes of practice 438 Cartels 439 Internet implications: Business to business (B2B) trading hubs 439 Terms & concepts review 440 Consolidation questions 441 Problems 442 Terms & concepts checklist 443 Consumer credit 444 The Code 445 Credit providers and debtors 448 Disclosure requirements 448 Related transactions: mortgages and guarantees 454 Credit providers under the Code 455 Copyright O 2009 The Tilde Group
6 Table of Contents Enforcement and remedies under the Code 456 Penalties under the Code 458 Consumer credit and privacy laws 459 Internet implications: Ecommerce 459 Financial Transactions Reports Act1988 (Cwth) 460 Recent developments 462 Terms & concepts review 463 Consolidation questions 465 Problems 466 Chapter 17-Debt recovery 467 Terms & concepts checklist 467 Introduction to debt recovery 468 Credit customers 468 Unpaid debts 469 Recovery of debts 470 Court hearings 472 Enforcement of judgments 474 Role of debt collection agencies 476 Terms & concepts review 476 Consolidation questions 478 Problems 479 Chapter 18-Marketing 480 Terms & concepts checklist 480 Introduction to marketing 481 Marketing mix 481 Market games and competitions 484 Trading stamp promotions 486 Bait advertising 489 Referral selling 489 Gifts or prizes 489 False representations 490 Telemarketing 490 Price surveillance 491 Packaging and labelling 492 Trade measurement legislation 493 Poisonous and dangerous goods 494 Australian Code of Promotion Marketing Practice 496 Terms & concepts review 497 Consolidation questions 498 Problems 499 Chapter 19-Advertising 500 Terms & concepts checklist 500 Introduction to advertising 501 Reasons for advertising 501 Problems associated with advertising 502 Self-regulation by industry bodies 502 Statute protection 507 Common law protection 516 Terms & concepts review 519 Consolidation questions 520 Problems 521 Copyright 2009 The Tilde Group
7 Cornerstones of Australian Law Chapter 20 - Intellectual property 522 Terms & concepts checklist 522 Introduction to intellectual property law 523 Copyright 523 Design 542 Trademarks 548 Classes of goods 553 Patents 562 Terms & concepts review 572 Consolidation questions 575 Problems 577 Part F - Business Ownership & Bankruptcy Law Chapter 21 - Agency 581 Terms & concepts checklist 581 Introduction to agency 582 Agency relationship 582 Agency distinguished from other relationships 583 Types of agents 584 Creation of agency 585 Duties of an agent 589 Rights of an agent against the principal 591 Liabilities of an agent 593 Termination of an agency agreement 597 Terms & concepts review 599 Consolidation questions 601 Problems 602 Chapter 22 - Business entities 603 Terms & concepts checklist 603 What is a business? 604 Sole traders 604 Joint ventures 605 Associations 607 Trusts 610 Cooperatives 616 Companies 618 Partnership 618 Business names 619 Terms & concepts review 619 Consolidation questions 620 Problems 621 Chapter 23 - Partnerships 622 Terms & concepts checklist 622 Introduction to partnership law 623 Existence of partnership 627 Formation of partnerships 629 Liability of partnerships 633 Limited liability partnerships 635 Partnership property 637 Dissolution of partnerships 638 Strengths and weaknesses of partnerships 641 Copyright 2009 TheTOdeGroup
8 Table of Contents Terms & concepts review 642 Consolidation questions 644 Problems 645 Chapter 24 - Companies 646 Terms & concepts checklist 646 Introduction to company law 647 Operations of a company 651 Strengths and weaknesses 656 Terms & concepts review 657 Consolidation questions 658 Problems 659 Chapter 25 - Bankruptcy law 660 Terms & concepts checklist 660 Introduction to bankruptcy 661 Reasons for bankruptcy 661 Bankruptcy Act1966 (Cwth) 662 Voluntary and involuntary bankruptcy 667 Acts of bankruptcy 672 Administration of the bankrupt's estate 679 Recovery of money or property 684 Distribution of the estate - order of payments of debts 685 Discharge of bankruptcy 689 Annulment of bankruptcy 692 Terms & concepts review 697 Consolidation questions 699 Problems 700 Part G - Appendices Appendix I - Glossary Appendix II - Table of Cases Appendix III - Table of Acts Appendix IV - Table of Regulations Index Copyright 2009 The Tilde Group
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