45-47 Part 1: General & Specified Prohibited Conduct Lecture 11: Consumer Protection Law

Transcription

1 Sectin Page Lecture 1: The Australian Legal System 1-4 Lecture 2: Intrductin t Cntracts 5-9 Lecture 3: Cnsideratin Lecture 4: Capacity, Legality & Frm Lecture 5: Term in a Cntract Lecture 6: In class test Lecture 7: Negligence & the Civil Liberty Act Lecture 8: Business Related Trts Lecture 9: Agency Lecture 10: Cnsumer Prtectin Law Part 1: General & Specified Prhibited Cnduct Lecture 11: Cnsumer Prtectin Law Part 2: Cnsumer Guarantees and Prduct Safety Lecture 12: Prperty Law 54-59

2 Lecture 1: The Australian Legal System The curts are invlved in the administratin f law as well as the reslutin f disputes Curts have criminal and civil jurisdictin Jurisdictin: pwer and authrity cnferred upn the curts t hear and determine the matter Australia = Adversarial System (cmpetitive) Crimes Act (NSW) Original Jurisdictin: hears and decides dispute fr the first time Appellate Jurisdictin: hears and determines an appeal frm a curt lwer in hierarchy Tw hierarchies f curts: Federal and State/ territry High Curt Established under Cmmnwealth Cnstitutin in 1901 Cmmn t bth hierarchies Chief Justice + 7 Justices Binding n all curts Federal Curts (Cmmnwealth Civil Law) Federal Curt Full Bench hears nly appeals frm lwer curts Federal Curt Single Judge unfair trading, crruptin law Federal Magistrate Family Law, Bankruptcy All sit in all Australian capital cities State & Territry Curts All civil & criminal matters + Cmmnwealth criminal Equivalent curt hierarchy in all states/ territries NSW Supreme Curt Highest curt in NSW Cmmn law (civil matters ver $750,000) Criminal law (mst serius crimes murder) Equity (specific perfrmance & injunctins) Prbate (wills) State bundaries (NSW matters nly) NSW Supreme Curt f Appeal 2-5 judges

3 Curt f appeal = civil Curt f criminal appeal = criminal NSW District Curt Judge (Yur Hnur) Criminal Matters serius except murder/ treasn Civil matters GBH/ Rape etc Lcal Curts in NSW Original jurisdictin Gegraphical limits Criminal cases all ffences first mentined Summary ffences drink driving, minr ffences Criminal Prcedure Prceedings cmmenced by either summns (civil) r arrest (criminal ) Criminal = cmmittal hearing sufficient evidence t prceed t trail Indictable ffences trail takes place in District r Supreme Curt Crwn = (R) The Actus Reus (a wrngful act) + Mens Rea (intentin) Cmmn law Civil law (Citizen v Citizen) (Cmpensatin e.g. $$$) Criminal law (State v Accused) (Punishment e.g. jail)

4 Cmmn law Civil law Criminal law Examples f laws relevant t business Cntract Trt Prperty Successin Negtiable instruments Business Entities Trusts Examples f business crimes Extrtin Larceny Embezzlement Stealing Fraud Frgery Cyber attacks Peple in Curt Judge Jury Respnsible fr adjudicating the trial Deciding questins f the law Passing sentence Hearing appeals Grup f laypeple wh decide questins f fact Duty is cmpulsry Selected randmly )Challenges) 6 in civil/ 12 in criminal Lawyers Barrister (rep in curt) Slicitr (rganises paperwrk) Civil Actin 1. Cnsideratin (cst, stress, resurces) 2. Cmmence prceedings claim 3. Pre-trial 4. Trail 5. Evidence 6. Decisin 7. Appeal

5 Alternative Methds t Curt Delays, cst, ignrance & intimidatin Tribunals (builders) Ombudsman (telecmmunicatins) Alternative Dispute Reslutin Rules f Precedent Decisins f judges n the same level are nt binding but may be fllwed fr cnsistency Superir appeal curts are nt required t fllw their wn previus decisins but tend t fr cnsistency Lwer curts nt bund by biter dicta f a higher curt but may chse t fllw it. Obiter Dicta: a judge s expressin f pinin uttered in curt r in written judgement but nt essential t the decisin and therefre nt legally binding as a precedent (by the way) Rati Decidendi: (the reasn/ ratinal fr the decisin) a legal rule derived frm; and cnsistent with, thse parts f legal reasning within a judgement n which the utcme f a case depends.

6 Lecture 2: Intrductin t Cntracts Surces f Cntract Law Cmmn law: Case law (the mst imprtant) Legislatin Simple Cntract Intentin t create legal relatins Agreement (n the same thing) Cnsideratin (prmise fr a prmise) Validity D parties have capacity? (Mental disability/ alchl) Have parties cnsented? (meeting f the minds) Is the purpse legal? Have all the prcedural requirements been satisfied? Bilateral cntract: bth parties must d smething Unilateral Cntract: nly ne party has t d smething (reward, cntest, lst dg, perfrmance = acceptance f ffer) Classificatin f Cntracts (enfrcement) Valid: a cntract, which the law will enfrce Vidable: the cntract remains valid and binding unless and until it is repudiated by the injured party Vid: n legal rights r bligatins frm the nset (vid ab initi) Unenfrceable: valid n its face but n legal actin can be brught n the cntract, ften because f a prcedural defect Illegal: the purpse f the cntract cntravenes a statute r the cmmn law, and generally treated as vid Classificatin f Cntracts (perfrmance) Executed cntracts: where bth parties have cmpleted their respective bligatins at the time f making the cntract Executry cntracts: relating t an agreement where at least ne f the arties prmises t d, r refrain frm ging, smething in the future Classificatin f Cntracts (frmatin) Express cntracts: whlly in writing, whlly ral r a cmbinatin; all terms agreed t

7 Implied cntracts: lk at the circumstances surrunding the acts r cnduct f the parties Quasi cntracts: an bligatin impsed by law n a persn, unusually t pay mney t anther n equitable grunds (CTP) Classificatin f cntracts Classificatin Type f cntract Cmmentary By prmise Bilateral A cntract entered int by way f Unilateral prmises; a prmise fr a prmise A cntract in which the fferr s ffer can nly be accepted by the perfrmance f an act by the fferee; a prmise fr an act Enfrceability Valid All the elements are satisfied and enfrceable by either party Vidable Only the injured party can enfrce the cntract r recind Vid N legal rights r bligatins, s neither party can enfrce it Unenfrceable Lacking a prcedural requirement t make it enfrceable Illegal The purpse f the cntract is cntrary t statute r cmmn law Perfrmance Executed Perfrmed at the time f making Executry Bth parties still have bligatins t perfrm Frmatin Expressly The cntract is created by express wrds that is in writing, rally, r a cmbinatin f bth Implied Quasi cntracts Frmal Simple Parle Evidence Rule Created by the cnduct r actins f the parties An agreement impsed by law A cntract that requires a special frm r methd f creatin but desn t require cnsideratin t be valid A cntract that desn t require a special frm but must have cnsideratin present Where parties have reduced the agreement t writing, the curts will assume that it is a cmplete recrd f the cntract Curts are generally reluctant t admit evidence f acts r wrds f the parties prir t the executin f the dcument that will add t, vary r cntradict the written agreement Intentin t create legal relatins The fact that parties have reached agreement des nt necessary mean that a cntract has been frmed