Legislation (law enacted by legislature)

- english and roman law (dynamic)

- legislatures: Commonwealth, states and self-governing territories
- 9 legislatures mostly bicameral (2 houses) except, Qld and the self-gov territories
- legislature of comm and states called parliament
- law called: legislation, statutory law, Act of parliament
Legislative power of states (broad general legislative power)
- legislation enacted by a state or territory only operates within its borders
- state and territory legislatures share some legislative power with the parliament (comm)
Legislative power of Territories (broad power)
- subject to overriding power of comm gov
Legislative power of Comm (applies throughout Aus)
- comm gov has limited (less) legislative power than the state and territory gov
- comm constitution gives comm parliament power to make law in specified matters (exclusive power s52)
- concurrent (shared) power (s51) is limitation to state and territory legislation
- comm legislation under shared power > state and territory legislation, if inconsistency or conflict present
- local governments: State and territory governments, make laws called by- laws or local laws
- by-laws invalid if they are inconsistent with state or federal law (comm)
Legislative Process
- Legislative process: Bill, First second third reading of bill, royal assent, Commencement
- 2 houses: House of origin, House of review
- Bill (completed draft of a proposed legislation): development of policy > decision to legislate > bill drafted and gets
reviewed
- House of origin: Initiation > First Reading (no debate) > Second reading (Minister explain purpose, debate occurs) >
Committee > Third Reading (house votes)
- In bicameral legislatures, House of review: first, second and third readings are repeated, and
- Un-amended bills are returned to House of origin and proceed
- Amended bills is returned to House of origin, which may accept or reject the amendments
- If agreement cant be reached, Government can be dissolved and general election called
- once approved by both houses, the bill is sent to Queens representative to receive Royal Assent (a formality)
- after receiving the royal assent, act is published in the Government Gazette
- act may specify a date when its operational (may be on the same day it receives royal assent)
- if the act does not specify a date, its operational 28 days after receiving royal assent
- Interpreting legislation: Literal approach (Use dictionary to find ordinary and natural meaning), Golden rule (If literal
approach give absurd result, modify the literal meaning to extend necessary to avoid absurdity or inconsistency), Purpose
approach (If literal approach does not give a clear and unambiguous meaning, ascertain the meaning of words by purpose)
- For purpose approach, Intrinsic (necessary) evidence (objects section, titles, structure of act, information of other
sections), Extrinsic evidence (Parliament papers, reports and documents, 2nd speech)

Contract performance and breach:

- Excuses performance that performance is impossible: Initial impossibility(sale of non-existing thing), Supervening
impossibility/ Frustration
- Partial performance: Condition(may terminate and claim damage), Warranty (cannot terminate, can claim damage)
- Substantial performance: Breach of condition is treated as breach of warranty, performance cannot be terminated, only
entitled to claim damages.
- Late performance: Breach of condition(may terminate performance), breach of warranty (performance cannot be
terminated)
- Anticipatory breach/ Repudiation: Non-defaulting party can accept repudiation, terminate further performance and sue for
damages.
- Innominate terms: Serous (breach of condition), not serious (breach of warranty)
- Divisible contracts: Philips v Ellinson Brothers, Govt of Newfoundland v Newfoundland Railway Co
Remedies for breach of contract:
- Common law remedies- damages to compensate for loss, terminating the right to perform
- Equitable remedies- specific performance, injunctions
- Damages can be claimed for direct loss and consequential loss.
- Mitigation of loss: A plaintiff must do everything that is reasonably possible to minimise the losses, plaintiff cannot claim
losses from defendant if those losses could been avoided by plaintiff taking reasonable steps to avoid them.
- Termination of performance: Must prove less than substantial performance OR serious breach of an innominate term.
- Decision to terminate is final, decision to terminate must communicated to defaulting party, decision must be unambiguous,
either by word or deed, there may be special procedures agreed in contract for termination.
- Terminating of Goods: Breach of condition must be treated as breach of warranty if goods already been accepted and
become owner of buyer
- Specific performance: Wont be ordered if damages give adequate relief, performance involves close personal relationship,
goodwill or cooperation, where continuous supervision would be necessary.
- Injunctions: wont be ordered if damages is an adequate remedy.
Vitiating factors:
- Void ab initio: attempt to create legal transaction has no legal effect
- voidable ab initio: valid transaction is created, but court sets it aside from beginning
- Vitiated: Describe a contract that is made void
- Restitutio in integrum: If legal transaction is void ab initio, after set aside, the parties must
restore to their pre-contractual position by reversing any performance.
- Duress: can be void if the person who was forced acts within reasonable time

Australia Consumer Law

- Consumer at disadvantage. Reason: they have less negotiating power, less organised, lack information about goods and
service they obtaining, don't know law.
- Goods acquired as consumer only when price is < $40,000. If > $40,000, only consider as consumer if the goods are for
personal or household use. A person is not consumer regardless the price paid if their purpose is to resupply, trade or
Case Law (rules established under the doctrine of precedent)
commerce.
- Doctrine of precedent- new case decided same way as previous one
- Judge can make law indirectly when they decide cases: 1.declare a rule as an Australian rule for the first time 2.interpret - s18: Misleading or deceptive conduct: Conduct is misleading if it lead the person at whom it is directed into error, not
relevant to prove the conduct was either intentional or negligent, misleading conduct is prohibited only it takes place in
existing rule to establish its meaning 3. Use an existing rule to a new situation
trade or commerce(professional), can be avoided if a defendant issued disclaimer
- Common law + Equity can be referred as case law/general law
- s20, s21, s22: Unconscionable dealing
- Stare Decisis: Let the decision stand (doctrine of precedent)
- Ratio Decidendi: consists of the legal rule, reason that the court has applied to the material facts of the case to arrive at its - s20: A person must not, in T or C, engage in conduct that is unconscionable.
- s21: A person must not, in T or C, and in connection with the supply or acquisition of goods or services to or from
decision. (Essential part of precedent)
person. This section is wider, does not distinguish between consumer and commercial transaction.
- Lower courts follow the precedent of the superior court in the same hierarchy (binding)
- s22: factors which may take account when deciding whether unconscionable conduct under s21 (Factors: relative
- The decision of court from other hierarchy is not binding but persuasive
bargaining of parties, whether party imposed conditions not necessary to protect their interest, whether a party was able to
- Equity- justice and fairness, good conscience (motives) to enforce a contract
understand documents, whether any undue influence, whether a party can acquired identical goods or services from
Contract formation:
another person, the extent to which partys conduct was consistent with their conduct in similar transaction with other
- Adult over age 18 with sound mind have capacity to contract, minor may be bound by contract for necessities and
business consumers.)
things that give benefit
- s24: Unfair terms: make unfair term void, rest of contract remain valid. Standard form contract is where one party has
- Doctrine of privity: Parties to contract have the right to bring action to enforce it.
most bargaining power without giving the other party any opportunity to discuss the terms. Terms are unfair if: The terms
- How contracts are created: Intention to be legally bound & sufficient agreement & either formation execution in deed
cause significant imbalance in parties contractual rights and duties AND terms not reasonably to protect interest of party
or consideration.
AND cause financial detriment to one party.
- Agreements: Offer and acceptance. After long and complex negotiations, by accepting standard terms set out, without
- Unfair business practice: False and misleading statements(s29), Offering gifts and prizes(s32), misleading conduct as to
expressly stated terms, when one party offers to do something in exchange for a act
nature of goods or services(s33-34), Bait advertising(s35), wrongly accepting payment for good(s36), unsolicited
- Offer: must be promissory, sufficiently complete, intensed to result in a contract if accepted, addressed to particular
cards(s39), unsolicited goods(s40), harassment or coercion(s50), referral selling and pyramid scheme(s44-45)
person or an identified group of persons.
- Statutory guarantees: cant be contract out of, good brought by description(s56), goods are not of acceptable quality if not
- Acceptance must be same terms as offer, not still subject to a condition, while offer still in existence, made by the
fit for purpose(s54), if consumer disclosed purpose, goods must be fit for purpose(s55), goods same as sample in
person whom the offer was addressed, made in acceptable form. Acceptance by fax is consider instantaneous as the
quality(s57), guarantee manufacturer will ensure repair facilities and space parts available(s58), guarantee manufacturer
message is received at the offerees end. Acceptance by post effective when letter of acceptance is posted. For email, if
and supplier will comply with warranties(s59).
offeror specified an email address as way to accept offer, then receipt take place when email reach that system. If not, the
- Statutory guarantees remedy: Get the failure remedied by someone else, then recover the cost from supplier OR notify
receipt takes place only when email comes to attention of the offeror.
supplier they are rejecting goods.
- Formal deed, informal consideration(can be thing, money or promise to give or do something, consideration cant
- Statutory guarantees remedy for major failures: Notify supplier they are rejecting goods OR keep goods and bring action
consist of something previously promised or done-past consideration, executed consideration)
against supplier to recover compensation for the lower value good below agreed price, consumer can sue supplier for
Terms of contract:
damages to compensate.
- Parol evidence rule: Written contracts only
- Unsolicited consumer agreements: A dealer not permit to call on sunday or public holiday, before 9am anyday, after 5pm
- Puff (made to engage, attract or excite others into contracts), Opinions(statement of personal views or beliefs),
saturday, after 6pm anyday(s73), dealer must tell objective and tell consumer they have right to ask dealer leave (s74,75),
representations
Copy of unsolicited agreement must contain all terms(s78), consumer has right to terminate within 10days (s82), however
- Terms: Consideration, Warranties (Test: Ask whether the promise was so important that the person to whom it was
if breach one of these, can extend to three months to terminate.
made would not have entered the contract without it, and this was apparent to the person making the promise.
Tort
law:
Agency
law:
- Innominate terms (undefined could be either condition or warranty)
-- Conduct(positive
act, failure
principal, agent, third
party to act, failure to make statement or giving advice)
- Terms can become part of contract by agreement (agreed terms) or put in contract by operation of law(terms implied by
-- Harm(physical
injury
to person,
damage to property, purely economic loss)
express authority
can be
general physical
or specified
law)
-- Establish
liability of
negligence:
Defendant
owed plaintiff DOC AND defendant breach DOC
implied authority:
specified
express
authority
- Expressly agreed terms
AND
plaintiff
suffereda person
loss or injury.
- Apparent
authority:
not given actual authority, it appear to third parties that employee
- Terms agreed by implication ad hoc(Officious Bystander Test: What would the parties have replied if an officious
-has
Establish
DOC:
Must able
to foresee
harm
of some kind would happen, must be member of
authority
to represent
their
employer
as agent.
bystander had asked them at the time of agreement whether the suggested term was part of their contract? If it can be
class
of personofwho
it was foreseeable
suffer
harm,
recognised
duty
situation
must exist( property
- Ratification
unauthorised
act: mustmight
be done
within
reasonable
time,
cannot
ratifyorifrelationship
third
inferred that the parties would have answer of course, the necessary intention is established)
occupiers
andknow
persons
entering
statutory
party doesn't
agent
actingproperty,
for someone
else. authorities and public, road users and other persons on road, principals
- Implied term must give business efficacy, must be reasonable and equitable, must be capable of clear, unambiguous
and
agents,
persontoincarry
contractual
relationship,
- Duties
of agent:
out instruction,
carrymanufacturers
their task withand
dueconsumers)
care and skill, act in good
expression, must not contradict any express terms
-faith,
Harm
recognised
by law: must
be too
remote,
harm cannot be quantified in monetary terms is not recognised, ordinary
can
appoint sub-agent,
mustnot
keep
proper
account.
- Universal terms: Terms put into all contracts by law: To cooperate and do what is reasonable so that both parties get
grief
or
sorrow
is
not
harm.
- Duties of principal: must pay agent agreed fee, must reimburse expenses, losses or liabilities
the benefit of the contract, to act in accordance in good faith.
occurred in course of agency, agent has lien over property to secure payment until principal
- Generic terms: Term implied by law into certain kinds of contract.
pay the agent.
- Sales of goods legislation: When where and how delivery and payment be made, when ownership in the goods passes
- Ending agency relationship: end when term expire or task done, principal notify agent their
to buyer.
authority withdraw, agent notify principal they will not carry out instruction, Unless granted in enduring power of attorney,
- s12: quality of goods sold
agent authority is revoked if principal becomes mentally incapacitated. Death of principal terminates agent authority.
- s18: Goods delivered must be those identified by the description, no implied quality.
- s19a: No implied condition as to fitness of goods for any particular purpose if specified articles are bought under a
patent or trade name
- s19b: if good bought by description and seller deals in goods of that description, then seller obliged to deliver goods
that are merchantable quality.
- s20: Quality of goods will be determined by reference to sample
- Terms that exclude or limit liability: Must brought to attention of other party
- Contra preferentum: Interpreted against the interest of the preferred party
- s61: Parties may agree to exclude or vary a liability arising under Goods Act, makes no distinction between commercial
and consumer contract.