Professional Documents
Culture Documents
Contents
Page
3
Copyright
Ka
Hei
Yeh
2011
First
Edition
Published
May
2011
Revised
June
2011.
First
Draft
Published
March
2011.
Introduction to Business Law Legal Reasoning and Statute Interpretation Introduction to Contract Law Terms and Vitiating Elements Termination of Contract and Damages Introduction to Tort Law Professional Negligence Property Law Consumer Law Competition Law Crime in the Business World Risk Management
Page 6 Page 10 Page 13 Page 18 Page 21 Page 23 Page 24 Page 28 Page 31 Page 35 Page 37
This work is licensed under the Creative Commons Attribution-Non-Commercial- No Derivative Works 2.5 Australia Licence. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-nd/2.5/au/ or send a letter to Creative Commons, 171 Second Street, Suite 300, San Francisco, California, 94105, USA. Disclaimer: The author does not guarantee the accuracy of the notes available and will not be held liable for any damages (including lost marks etc.) as a result of the use of these notes. Use at your own discretion with caution. Do not rely on them; these notes are not intended to serve as a replacement for your own.
Background
Most
of
us
know
law
as
a
set
of
rules
that
are
used
to
control
how
society
behaves.
Authorities
such
as
courts
enforce
laws.
The
Common
Law
Legal
System
Since
Australia
was
a
former
colony
of
England,
it
adopted
the
English
common
law
system.
The
three
laws
in
this
system
are:
Statute
Law
Laws
made
in
parliament
(federal
or
state).
It
can
be
changed
by
parliament.
They
are
also
known
as
legislation,
Acts
of
Parliament
or
enacted
law.
Common
Law
Laws
that
are
made
in
courts
by
judges.
These
can
be
changed
by
parliament
or
future
court
cases.
It
is
also
known
as
case
law,
precedent
or
unenacted
law.
Equity
These
are
the
legal
rules
and
principles
developed
by
the
Courts
of
Equity
in
England.
Equity
only
applies
to
civil
law
and
it
provides
for
remedies
that
go
beyond
just
damages.
These
are
split
into
injunctions,
an
order
to
stop
a
certain
activity,
and
specific
performances;
an
order
by
the
court
for
the
person
to
do
a
specific
thing.
If
there
is
a
clash
between
statute
and
common
law,
statute
law
always
prevails.
Classification
of
Laws
There
are
many
different
types
of
laws
in
Australia
and
these
are
separated
into
different
classifications:
International
Law
and
Domestic
Law
International
law
applies
to
any
situation
where
there
is
an
international
element
involved.
Treaties
and
conventions
between
(agreements)
between
countries
can
become
domestic
law
when
they
gain
legislative
approval
and
are
approved
by
the
government.
Cases
that
do
not
have
an
international
element
are
where
domestic
laws
apply.
These
are
Statute
or
Common
laws
as
mentioned
previously.
Public
Law
and
Private
Law
Public
laws
are
those
that
deal
with
the
government
and
its
relationship
with
the
people.
These
include
criminal,
taxation,
industrial
and
constitutional
laws.
Private
laws
are
those
between
the
individuals
and
entities
such
as
contracts,
torts
and
property.
Substantial
Law
and
Procedural
Law
Substantial
laws
are
the
rights
and
duties
of
individuals
and
organization
under
the
law.
Procedural
law
is
how
a
hearing
should
proceed,
such
as
evidence
rules
and
the
code
of
conduct
of
proceedings.
Civil
Law
and
Criminal
Law
Civil
laws
are
those
brought
against
another
and
focus
on
remedial
action.
In
a
civil
case,
the
case
is
won
based
on
the
basis
of
probabilities.
Criminal
laws
are
those
where
one
is
accused
and
the
emphasis
is
on
punishment.
In
a
criminal
case,
the
prosecution
must
prove
beyond
reasonable
doubt
that
the
accused
is
a
criminal.
Business
and
the
Law
Semester
1
2011
A brief history is listed here. Note, Australia was called New South Wales until federation (1901), after which it became a state. 1788 English system inherited 1823 Court system and legislative council established 1853 Development of NSW parliament since establishment 1855 NSW Constitution established 1865 Colonial Laws Validity Act established: English laws override Australian laws if they contradict or overlap. 1901 Federation: Federal and state governments established. 1931 Statute of Westminster: Australian system made independent from England. Only the Queen remains as a ceremonial role as head of state. However, she only acts on what the Australian government directs her to. 1986 Australia Act: Australian legal system completely severed from England. Commonwealth (Federal) and State Powers The Commonwealth government has the ability to exercise exclusive powers and concurrent powers. Exclusive powers are those that affect the entire country such as defence, foreign affairs and immigration. Concurrent powers are those that affect a certain state such as education, tax and health. State governments also have concurrent powers but do not have exclusive powers. Most concurrent powers are shared between commonwealth and state governments in Australia. Residual powers are powers that do not fit under exclusive or concurrent powers; local councils handle these. If there is any conflict between commonwealth and state laws, commonwealth law prevails.
The
Westminster
System
The
Westminster
system
is
the
system
Australia
current
operates
under
as
defined
in
the
Statute
of
Westminster.
It
means
the
queen
is
only
a
figurehead
as
the
role
of
state,
and
the
governor-general
is
the
representative
of
the
queen
in
Australia.
There
is
to
be
a
responsible
government
that
responds
to
the
needs
of
the
people
and
a
separation
of
power
between:
The
Parliament:
Makes
the
laws.
This
is
separated
into
the
House
of
Representatives
and
the
Senate.
Legislation
must
pass
through
three
separate
readings
in
both
houses
before
it
can
become
law.
The
Executive:
This
consists
of
three
entities:
the
governor-general,
the
prime
minister
and
cabinet,
and
the
government
departments.
The
executive
can
pass
through
delegated
legislation
without
having
to
pass
through
parliament.
These
are
made
by
the
governor-general
on
the
advice
of
the
The
Judiciary:
Interprets
the
law
and
enforces
it
such
as
the
courts.
They
should
be
kept
separate,
but
many
note
that
they
are
all
linked
and
are,
in
fact,
not
separate.
Business
and
the
Law
Semester
1
2011
If an entity does not like the result of a decision that a public service has decided on, such as those from the ATO, ASIC, APRA and ACCC, then they may ask for a review. They may ask for a judicial review or an administrative review. This is where decisions are reviewed again under different people to arrive at another conclusion, which may or may not be the same as the original. An entity may also access information from the government and semi-government organisations through the Freedom of Information (FOI) Act.
Background Now that we have a basic understanding of how laws work, it is time to understand how the law is used. The Police and the Courts The rule of law is to balance freedom with legislative power in a modern democracy.
The Police are simply there to enforce laws, which are created. The courts also are there to enforce the law, but they may also resolve disputes. Different types of courts have different types of jurisdictions as will be discuss in the next section. The Australian Court System The court system in Australia is a series of courts with different jurisdictions from lower to higher courts. State courts and Federal courts are used independently from each other until a hearing is to be heard at the High Court, which is the highest level of court in Australia. The hierarchical court system is significant and beneficial in that is allows for a system of appeals in that entities may appeal decisions in lower courts. It also allows different people to hear the same case and also builds up precedent (explained later). In regards to jurisdiction, courts have original jurisdiction (the authority to hear a case when it is first brought to a court) and appellate jurisdiction (the authority to hear appeals from lower courts). The court order from lowest to highest in each hierarchy (state/territory) is: Magistrates or Local Courts These are inferior courts, which are designed to handle minor disputes quickly and cheaply, such as parking fine disputes. County or District Courts These are intermediate courts that deal with middle level disputes and have original jurisdiction for civil cases. They have original jurisdiction for criminal cases but more serious cases are settled in higher courts. They can also hear limited cases of appeal from inferior courts. Supreme Courts These are the highest courts in a state or territory and are presided over by a judge. They have unlimited original jurisdiction but will usually only handle the largest of cases. There are also other specialist courts that deal with specific cases such as: Family Courts Drug Courts Compensation and Work Health Courts Land and Environment Courts
Precedent
One main reason of the court system is that lower courts must follow the previous decisions of courts higher than them in the same hierarchy in what is known as precedent. Another term for a precedent is stare decisis. The only exception is if the ruling is inconsistent or is wrong in terms of law. They are split into two types: Binding Precedent If the facts of the case are same or similar, a District Court has a binding precedent to pass the same decision as a Supreme Court or the High Court. It does not follow any decisions made in a lower court (i.e. A Local Court). Persuasive Precedent These precedents are seriously considered, but do not have to be followed. They are decided by a court, which is on the same level but on a different hierarchy. (i.e. The Supreme Court of NSW will seriously consider, but may not follow a similar cases decision in the Supreme Court of Queensland)
The Federal Court Hierarchy At the lowest end of the Federal Court hierarchy are the Federal Tribunals. The Federal Magistrates Court then follows these. This was only established very recently in 2000 to deal with the amount of cases going to other Federal Courts. As the name implies, they are presided over by magistrate and deal with minor federal matters of family law, bankruptcy and trade practices breaches. High-level courts include the Family Court and the Federal Court of Australia. The Family Court deals especially with cases that deal with family laws. The High Court of Australia The High Court of Australia is the final court of appeal for cases heard in Australia. As such, hearings are not automatically accepted at the High Court. Instead, cases must be submitted to the High Court and the court will decide whether the case will be heard or not in the High Court. The High Court does have original jurisdiction although this is usually only reserved for very high profile cases. The Parties in a Court Case In civil cases, a dispute goes to court when a plaintiff (the one bringing up the case), sends a letter of demand to the defendant (the one who is being accused). The defendant responds to the plaintiff and the matter is then brought to the courts. When a person appeals a decision, they then become the appellant and the opposite party becomes the respondent. Note that either the plaintiff or the defendant can become either party. In criminal cases the Crown, the state, and is known as Rex or Regina in law, which is abbreviated to R (i.e. R v Smith), is usually the one bringing the charges against the accused in criminal cases. The crown must prove the case beyond reasonable doubt to the court.
Legal Reasoning and Statutory Negotiation Helping these parties are solicitors and barristers. Solicitors usually do not handle litigations and only advise and prepare on things such as family law, preparation of wills and court documents. Barristers prepare legal opinions and appear in court on behalf of clients.
The Judiciary The judiciary involves various types of people who uphold the law in courts and also outside of them. They include: Justices of the Peace These are honorary positions and they spend most of their time serving as legal witnesses to documents. They can be found outside of courts. Magistrates These are selected from clerks and they preside over lower courts. They determine the fact and law in these courts. Judges These are appointed to courts where magistrates do not serve. They do everything a magistrate does and also hear appeals, pass sentences and determine compensation. The Jury 12 randomly selected citizens that determine questions of fact in criminal trials that are in intermediate or higher courts.
Some Terminology Some terminology that we should be familiar with are: Res Judicata This is a decision or decisions that have come out of a court dealing and must be upheld. Ratio Decidendi This is the decision of the court on a case. Ratio Decidendi from higher courts are binding on lower courts (precedent). Obiter Dictum These are the remarks or comments that the judge makes during the case. They are persuasive, but not binding on other courts. Affirm/Approve Uphold a judgment. Reserve/Overrule To set aside a judgment. Applied To use relevant case laws decide on a case. Followed To apply laws from previous cases without changing it. Not Followed The reverse of followed. Distinguished Stating out the differences between a precedent and the current case.
Most legal battles are fought over the interpretation of words, sometimes even a single word. As such, Courts are to interpret unclear legislation with the following rules: Use legislation instead of case law if there is inconsistency. Literal Rule: Take the literal meaning of the words. Golden Rule: Take the literal rule, unless it results in an absurdity. Mischief Rule: Find out what problem was the legislation trying to fix, and apply. Purposive Approach: Investigate what the law was made to do through extrinsic material.
The Acts Interpretation Act 1901 (Cth) provides definitions to most common words used in laws. For example: Ejusdem Generis This literally means, of the same kind. It is used in situations where ambiguity exists but the general meaning can be inferred from words or phrases used before or after it. (i.e. An act bans the consumption of beer, wine, spirits and other drinks. In this situation, other drinks can literally mean anything like water and juices, but applying Ejusdem Generis, we can deduce that it means other alcoholic drinks.) Noscitur a sociis Similar to Ejusdem Generis, the meaning of unclear words can be understood from other words around them. (i.e. An act prohibits the consumption of alcohol in streets, public passages and other places. In this case, other places would be inferred to mean other public places.)
Statutory Offences It should be noted that not all offences require an intention to commit that offence. These are called strict liability offences and the most commonly known one is speeding. You do not need to intend the speed, as long as you are above the speed limit, you can be fined. Unlawful business activities are also attracting criminal penalties now with directors facing heavy fines and even jail. Offences can also be solved outside of the court system with tribunals, the relevant ombudsmen and out of court settlements. This is known as alternative dispute resolution (ADR) and is frequently used because of the time and cost of going through court.
Background Contracts form the bulk of our dealings. We make contracts everyday, even if we dont specifically sign a piece of paper. When you buy a ticket for a train, there is a contract for the company to provide you a train service to your destination. When you enter a car park, there is a contract to leave your car there and also to pay the car park provider for how long you parked there for. Sources and Types of Contracts Contract Laws, like all other laws, are made either through legislation or judges in courts. Contracts can be either formal or simple contracts. Formal contracts are in the form of deeds, seals or wills and are elaborate. Formal contracts are normally used in situations where there is no consideration, and thus, would have no incentive to follow the contract. Simple contracts make up the majority of contracts and can either be oral or written and can be unilateral (i.e. only one party has any obligation) or bilateral. Essential Elements of a Contract Contracts only become legally enforceable when there is: An Intention An Agreement (that is, offer and acceptance) Consideration
An agreement on its own is not necessarily a contract. Only when it becomes legally enforceable, does it become a contract. For a contract to be valid, it must: Offers The beginnings of a contract arise from an offer. An offer can be directed to anyone and any amount of people. As seen in the Carlill v Carbolic Smoke Ball Co case, anyone who fit the condition of the advertisement could enter the contract. For there to be an offer, there must be: Parties that think the same way and are willing to be bound by a contract. A promise. Communication of the offer (this does not need to just be orally or in writing. It can be communicated through conduct as well). Be made by parties who have legal capacity (i.e. Over 18 years old, not mentally unsound etc.) Be made with genuine consent (that they really want to enter the contract) Be legal Satisfy all formal/procedural requirements.
If
the
responding
party(ies)
sends
a
counter-offer
or
rejects
the
offer,
the
original
offer
is
no
longer
valid
and
the
counter-offer
becomes
the
new
offer.
This
is
seen
in
Hyde
v
Wrench.
Business
and
the
Law
Semester
1
2011
10
Do
note
that
a
tender
is
not
an
offer
unless
the
tender
states
exact
needs
such
as
numbers
and
figures.
Requests
for
information
are
also
not
offers.
If
someone
is
selling
a
car
and
someone
calls
to
ask
how
long
the
registration
has
left
on
it,
this
is
just
a
request
for
more
information
and
they
are
not
offering
to
purchase
the
car.
Invitation
to
Treat
It
must
be
noted
that
an
offer
needs
to
be
distinguished
from
an
invitation
to
treat.
An
invitation
to
treat
is
an
offer
to
consider
an
offer.
For
example,
by
placing
products
on
a
shelf
in
a
store,
the
storeowner
is
providing
shoppers
an
invitation
to
treat.
The
Pharmaceutical
Society
of
Great
Britain
v
Boots
Cash
Chemists
(Southern)
Ltd
case
proved
that
in
such
situations,
an
invitation
to
treat
is
when
a
customer
selects
goods
from
the
shelf.
The
offer
is
made
at
the
counter
when
paying,
and
acceptance
is
gained
when
the
cashier
accepts
payment
for
the
goods.
Acceptance
of
an
Offer
When
accepting
an
offer,
the
entity
accepting
must
communicate
to
the
entity
that
offered
it
that
it
is
accepting
in
either
oral
or
written
form
and
to
that
exact
offer.
For
example,
if
there
is
a
reward
for
information
leading
to
an
arrest,
but
you
did
not
know
such
an
offer
existed
until
after
you
gave
the
information,
you
are
not
eligible
for
that
reward
since
you
did
not
respond
to
that
offer,
but
rather
something
else.
Even
if
the
entity
does
not
communicate
in
oral
or
written
form,
acceptance
may
be
communicated
in
conduct.
If
an
entity
starts
changing
procedures
to
go
in
line
with
the
contract,
or
acts
accordingly
with
the
contract,
the
contract
is
considered
to
be
accepted,
even
if
nothing
is
said
or
written.
The
Postal
Rule
When
using
the
post,
there
are
strict
rules
as
to
when
an
offer
and
acceptance
is
effective.
An
offer
is
only
effective
when
the
opposite
party
receives
it.
An
acceptance
is,
however,
effective
the
moment
it
is
posted.
If
the
offering
party
wishes
to
cancel
the
offer,
they
must
notify
the
other
party
before
they
send
their
acceptance.
However,
in
modern
days
where
most
communications
are
done
electronically,
agreements
and
offers
are
effective
the
moment
they
are
heard
by
the
opposite
party.
Consideration
Consideration
is
what
is
given
in
exchange
for
an
action
or
promise
in
the
contract.
Consideration
is
what
turns
an
agreement
into
a
contract.
If
there
is
no
consideration,
there
is
no
contract.
Note
that
consideration
does
not
have
to
just
be
money,
someone
can
paint
your
house
and
you
can
agree
to
give
him
or
her
your
television
in
return.
Rules
for
Consideration
Consideration
must
follow
some
rules:
1) There
must
be
consideration
in
a
contract
Business
and
the
Law
Semester
1
2011
11
2) The consideration must not have already been given. (i.e. you cannot say, I fixed your plumbing for you 3 years ago, so you can fix my garden in return tomorrow. This is not sufficient consideration since the fixing occurred before the contract.) 3) Consideration must have some value, but it does not need to be adequate. As long as both parties are happy with the consideration, third-parties cannot complain, even if they think it is inadequate. 4) Consideration must be sufficient (have some legal value). 5) Consideration must be possible of performance. 6) Consideration must be definite. 7) Consideration must be legal. 8) Consideration must be referable to the other partys promise. 9) Practical benefit can be good consideration. Intangible benefits gained as a result of a contract can be considered good consideration. See case: Musumeci v Winadell Pty Ltd. Insufficient Consideration The following cases are not considered good consideration: 1) Moral obligations (such as love and affection) 2) Part payment (unless creditor agrees) Promissory Estoppel Promissory estoppel allows a promise to be enforced by law, even though the person promising it has not provided good consideration. It is used when it would be detrimental or inequitable for the promisor to go back on their word. Key cases demonstrating promissory estoppel are: Central London Property Trust Ltd v High Trees House Ltd During World War II, rent is lowered as a result of the war, but they turn back and ask for full rent for the period during the war. Promissory estoppel stopped this from happening. Waltons Stores (Interstate) Ltd v Maher Maher built a custom building for Waltons but Waltons did not inform Maher of any possibility of dropping from the contract. Maher only found out Waltons did not want the building when it was almost complete. Promissory estoppel enforced the contract so Waltons had to pay, even if it did not want it.
12
Background
Not
all
contracts
must
be
upheld
to
the
very
end.
There
may
be
vitiating
elements
that
allow
one
or
both
sides
of
the
party
to
exit
a
contract
with
no
loss,
but
this
only
occurs
in
extreme
situations.
Intention
For
a
contract
to
be
legally
binding,
there
must
be
evidence
that
the
parties
involved
intended
to
enter
into
a
legally
enforceable
contract.
Documents
that
have
subject
to
contract
clauses
are
not
contracts
and
thus,
there
is
no
intention
to
enter
a
contract
yet.
Implied
Intention
Traditionally,
courts
assume
that
agreements
that
are
social
in
nature,
such
as
between
family,
domestic
agreements
and
voluntary
agreements
are
ones
where
there
is
it
is
presumed
there
is
no
intention
to
enter
into
a
legal
contract.
However,
commercial
or
business
agreements
are
presumed
to
have
an
intention
to
be
bound.
Courts
follow
this
traditional
rule
unless
it
is
rebutted
by
evidence.
In
the
Merritt
v
Merritt
case
a
written
document
was
signed
between
both
parties,
even
though
they
used
to
be
husband
and
wife.
There
would
have
been
a
presumption
that
there
was
no
intention
if
there
had
been
no
signed
document.
In
other
cases
such
as
Wakeling
v
Ripley,
courts
may
look
at
other
evidence.
In
this
case,
Wakeling
resigned
from
his
job
as
a
professor
at
a
university
in
England
and
moved
to
Australia
with
his
wife
to
live
with
Ripley,
who
had
offered
to
leave
his
entire
wealth
to
them
if
they
did
after
he
died.
It
was
assumed
that
there
was
legal
intention
to
enter
a
contract
since
Wakeling
had
to
sacrifice
a
lot
to
come
to
Australia.
In
this
case,
we
can
determine
that
intention
can
also
be
expressed
through
actions.
Terms
of
the
Contract
The
contents
of
a
contract
are
split
into
two
parts:
a
representation
and
a
term.
A
representation
is
made
before
the
contract
during
negotiation
and
is
not
intended
to
be
legally
binding.
However,
a
term
is
a
contractual
statement
and
is
intended
to
be
legally
binding.
A
representation
must
be
true,
and
there
is
reliance
placed
on
the
representation
by
the
innocent
party.
A
misrepresentation
can
sometimes
be
accidental
and
the
law
makes
room
for
this.
In
the
Bentley
v
Harold
Smith
case,
the
car
sold
to
the
consumer
was
said
by
the
dealership
to
have
only
gone
for
20,000
miles.
The
car
was
bought
on
this
knowledge,
but
then
it
was
found
to
have
actually
done
100,000
miles.
This
was
fraudulent
misrepresentation
on
behalf
of
the
car
dealership
since
they
had
the
expertise
to
know
this
information.
The
court
will
also
presume
that
if
a
contract
is
written
and
appears
to
contain
the
entire
contract,
that
all
terms
are
included
in
the
contract.
Courts
are
reluctant
to
admit
to
other
information
that
was
presented
before
the
contract
if
it
varies
the
written
contract.
Business
and
the
Law
Semester
1
2011
13
Express These are terms that are oral and/or written. Implied These are terms that fill in the gaps of the contract. They can come from things such as established customs, past dealings, statute laws and courts. For example, consumers have the right to refunds even if it is not an express term as this is implied in statute laws.
A
condition
on
a
contract
is
an
essential
part
that
forms
the
root
of
the
contract.
The
injured
party
has
the
option
to
end
the
contract
or
sue
for
damages
if
this
condition
is
breached.
A
warranty
is
a
non-essential
term
and
is
of
lesser
importance
than
a
condition.
It
allows
the
injured
party
to
recover
damages,
but
does
not
allow
the
contract
to
be
terminated.
Collateral
Contracts
Conditions
and
warranties
can
bring
rise
to
collateral
contracts.
Collateral
contracts
are
contracts,
which
result
from
a
promise
in
another
contract
(the
main
contract).
Note
that
collateral
contracts
are
completely
separate
from
the
main
contract,
but
they
exist
side-by-side
with
each
other.
For
example,
when
you
buy
a
laptop
at
a
store,
you
enter
into
the
main
agreement
with
the
retailer
that
the
product
will
work
as
intended
for
a
year.
A
collateral
contract
is
entered
between
the
manufacturer
of
that
laptop
and
the
retailer
the
moment
you
buy
that
laptop
which
allows
the
retailer
to
claim
in
the
event
the
laptop
does
stop
working
in
that
year
and
the
customer
brings
it
back
in.
Other
Terms
Uncertain
terms
are
those
that
are
unclear,
and
there
may
be
no
contract
between
the
parties.
However,
if
there
have
been
past
dealings,
the
court
may
imply
appropriate
terms
and
there
may
be
a
contract
between
the
parties.
Meaningless
terms
are
those
that
have
no
meaning.
The
court
will
remove
these
terms
to
the
extent
that
is
it
possible
without
harming
the
root
of
the
contract.
If
not,
the
courts
may
void
the
contract.
Ambiguous
terms
are
those
where
a
term
can
have
more
than
one
meaning.
The
contract
will
not
be
voided
as
long
as
the
term
can
be
given
an
appropriate
meaning.
Exclusion
Clauses
Exclusion
clauses
(also
known
as
exemption,
exception
or
no
liability
clauses),
are
clauses
designed
to
limit
the
liability
that
the
person
inserting
them
into
the
contract.
Exclusion
clauses
must
be
shown
to
all
parties
before
a
contract
is
made.
Any
exclusion
clauses
that
are
shown
after
the
contract
is
made
are
invalid.
In
the
Olley
v
Marlborough
Court
Ltd
case,
the
hotel
did
not
tell
the
people
before
booking
about
an
exclusion
clause
that
they
would
not
be
responsible
for
the
safety
of
articles
in
the
room.
This
exclusion
clause
was
written
on
the
door
inside
the
room
and
not
anywhere
else
and
thus,
could
not
be
seen
by
guests
until
they
have
already
entered
the
contract
to
stay
at
the
hotel.
Thus,
it
is
invalid.
Business
and
the
Law
Semester
1
2011
14
Interpreting Exclusion Clauses There are four rules in interpreting exclusion clauses.
Exclusion clauses are not valid unless they are properly incorporated into the contract.
Since these are usually presented as take it or leave it to the person being offered, the courts usually interpret against the interests of the person that drafted the contract (contra proferentem). This is known as the ambiguity rule. An exclusion clause is allowed to exclude the liability for negligence if it is clearly stated, unless it would be misleading or deceptive to do so. This is known as the negligence rule. Exclusion clauses shall only cover losses, which occur when a party is performing the contract in question. This is known as the four corners rule. In the Sydney City Council v West case, the car park let out a car without proper ID from the driver, who was not the actual owner of the car. Sydney City Council had an exclusion clause for loss or theft but the council was operating outside of the contract when it did not check the car driver for proper ID, hence that clause was invalid and West won damages. An exclusion clause must be interpreted according to the express terms in the main contract. If a buyer signed a contract for a new car with an exclusion saying that the buyer must take whatever car is given to them, the exclusion clause will not be valid the buyer is given a car totally different to that stated in the contract. It may be allowed only, and only if, the exclusion clause is clearly and unambiguously expressed to do so. Statute Law and Exclusion Clauses Exclusion clauses do not override statute law. Thus, if a statute law exists that provides for a certain event, an exclusion clause cannot be provided for the same event. Even if the exclusion clause for that even is written on the contract, it is overridden. Enforceability of Contracts 1) 2) 3) 4) 5) Contracts can be classified into five types of enforceability: Valid: A contract, which is enforceable by law. Voidable: A contract, which can be voided by the party that has been injured. Void: A contract with no legal rights or obligations. (Void since beginning: void ab initio) Unenforceable: Valid on face, but no legal action can be brought against it. Illegal: A contract, which contravenes statute or common law. Also considered void.
Performance
of
Contracts
Contracts
can
be
classified
into
two
types
of
performance:
1) Executed:
Contracts
where
all
parties
have
already
completed
their
obligations
before
the
contract
was
made.
2) Executory:
A
contract
where
one
or
more
parties
in
the
contract
promises
to
do,
or
not
do
something
in
the
future.
Business
and
the
Law
Semester
1
2011
15
The Statute of Limitations is a statute, which defines how long after a contract has ended, that legal action in regards to that contract can be brought to court. This varies between states but for most Australian states, is 12 years. This becomes 6 years for a simple contract. This limitation is provided so that the court system is not overwhelmed by needless cases from many years ago that have been left dormant. Vitiating Elements A vitiating element is something, which is: A mistake A misrepresentation An illegality An inequality
If a vitiating element is found, a contract can become voidable or void. If voided, the parties will continue as if the contract never existed. Mistakes If a mistake occurs, the contract becomes void. A mistake can be: Common: Both parties made the same mistake. Mutual: Both parties make a mistake, but the mistakes are different. Unilateral: Only one party has made a mistake.
Representation A representation is something that is said before the contact and induces a contract between the parties involved. Misrepresentation, when a representation is wrongly stated, allows for the injured party to void the contract. That is, the contract becomes voidable. A misrepresentation can be: Fraudulent There was intention to induce someone to enter a contract fraudulently. Contract becomes voidable. Innocent Misstatement of material fact that was not done intentionally/or was unknown to an unskilled party. The injured has the right to recover damages. Negligent A misstatement that is made innocently but carelessly. Injured party has right to damages.
16
Illegal Contracts Contracts are illegal if they: Involve illegal conduct (such as killing someone or stealing) Are contradicted by statute or common laws.
Inequality between Parties One party in the contract usually has the upper hand in terms of knowledge or other terms. In this sense, the higher party should not play around with the lesser party. Such inequality includes: Duress Using threats or violence to force another party into a contract, such as threatening family, threatening to damage goods/property or undue economic pressures beyond normal commercial practice. Undue Influence Using a position of power or influence to induce the other to enter the contract. In this case, consent is not genuine. Unconscionable Conduct When a party abuses their superior bargaining power. The injured must be in a position of special disadvantage that affected their ability to protect themselves. The superior party must also have known, or ought to have known, about this. See Commercial Bank of Australia v Amadio case.
Restraint of Trade Restraint of trade clauses are usually found in contracts for employment, sale of business and between manufacturers and traders. They are generally considered void unless they are reasonable. Reasonable is determined through: geographic location, time period, nature of the business, activity being restrained and whether it is in the interests of both parties and the public.
17
Background Most contracts terminate without much fanfare after the promise(s) has been completed and/or a set timeframe as elapsed. However there are, of course, cases where a contract is terminated for other reasons and damages are usually claimed from such terminations. Capacity For a contract to be valid, both parties must have the legal capacity to enter the contract. It is presumed that everyone has the capacity to enter into a contract unless it is proved otherwise. Entities seen as incapable of entering contract are: Minors (although they can enter necessary contracts and employment as long as it is not oppressive and is for the minors benefit) Mentally Ill Intoxicated Corporations (a person representing the corporation enters the contract instead)
Privity
of
Contract
Privity
of
contract
is
where
only
parties
to
the
contract
can
have
rights
or
liabilities
under
that
contract.
If
two
parties
negotiate
an
agreement
that
benefits
a
third
party
that
is
not
included
in
the
contract,
while
that
third
party
does
gain
a
benefit,
it
has
no
rights
to
that
benefit
if
it
stops
at
a
later
date.
Likewise,
the
two
parties
in
the
contract
have
no
liability
to
pay
the
third
party
that
benefit.
A
key
case
demonstrating
privity
of
contract
is
Beswick
v
Beswick.
Agency
An
exception
to
privity
of
contract
is
an
agent.
This
is
where
a
principal
grants
authority
to
an
agent
to
negotiate,
enter
and
maintain
a
contract
with
a
third
party.
The
actual
contract
is
between
the
principal
and
the
third
party
and
not
the
agent.
The
agent
is
generally
not
liable
for
anything
in
the
contract
in
most
cases.
While
agents
are
created
by
agreement,
or
by
operation
of
law,
agents
can
also
act
without
prior
grant
of
authority
from
the
principal
if
the
situation
is
serious
enough.
The
principal
may
then
grant
permission
retrospectively.
For
example,
Common
agents
include
real
estate
agents
and
share
brokers.
Breach
of
Contract
Breaches
of
contract
can
be
solved
at
two
different
levels,
these
being
at
common
law
and
at
equity.
Those
at
common
law
deal
with
damages
while
equitable
remedies
are
used
where
the
awarding
of
damages
is
not
an
adequate
remedy.
Both
aim
to
put
the
plaintiff
and
defendant
back
to
the
position
they
were
in
before
the
contract
in
question
was
made.
Business
and
the
Law
Semester
1
2011
18
A breach of contract can result in a termination of contract. This is when one party fails to perform their obligation (actual breach) or shows intention that they will not perform their obligation (anticipatory breach). A contract can be terminated by: Performance The contract ends when both parties have performed their contractual obligations. Agreement Both parties agree to terminate the contract. Operation of Law Such as bankruptcy, death etc. Lapse of Time If the contract stipulates a period of time after which the contract will expire. Frustration If, after the contract is made, something arises that makes performance impossible. Key Case: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales.
As mentioned previously, a contract can also be terminated by the statute of limitations if it has not already been terminated. Damages at Common Law Any breach in contract allows the injured party the right to claim damages. Damages are calculated based on what would have resulted if the contract had been performed. Common law also looks at: Remoteness Compensation is not awarded for damages that are too remote. Cause and effect cannot be casually linked over too many steps. (i.e. The train was late, which made you miss your connecting bus, which made you arrive at an examination late. You cannot blame the train operator here since it is too remote.) Causation Was there a connection between the breach of contract and the loss?
The amount of damages awarded is not just based on the financial loss, which would have occurred. They also include, if proven: Distress and disappointment Upset/anxiety Discomfort Mental Illness
The
innocent
party
also
has
the
duty
to
take
reasonable
steps
to
minimize
or
mitigate
losses
as
a
result
of
the
breach
of
contract.
If
not,
they
may
suffer
a
reduction
in
damages
if
the
defendant
can
show
that
the
innocent
party
did
nothing
to
mitigate
that
loss.
Business
and
the
Law
Semester
1
2011
19
General Normal compensation for damages resulting from the breach. Nominal Contract breached, but there are no losses. Damages still awarded to teach a lesson / prove a point. Expectation Damages paid to protect loss of profit and loss of commercial opportunities. Reliance Expenses incurred as a result of relying on the promises made by the defendant. Exemplary Punitive and are designed to punish deliberate bad conduct and to deter the wrongdoer. Liquidated Awarded where the plaintiff sues for a specific sum (which must be genuine). Unliquidated Awarded where the plaintiff sues for no fixed sum. The court decides the sum to be awarded.
An entity may also include penalty clauses in their contracts to allow the one or both parties to be entitled to a genuine pre-estimate of possible losses as a result of breaching the contract. The amount must not be extravagant or unconscionable and must not be designed to intimidate the other party. If so, they are not enforceable in court. Equitable Remedies Equitable remedies are used when damages are not an adequate remedy. These include: Restitution Court ordered return of property/money etc. back to its original owner. Can be used where there has been a mistake or duress. The plaintiff must prove that the defendant must have obtained a benefit, at the plaintiffs expense, and it would be unjust for the defendant to keep that benefit. Rescission The contract is set aside and both parties are restored back to their pre-contractual positions. Rectification The court corrects a written document. (e.g. A birth certificate must be corrected by a court) Specific Performance Court order for a party to perform their contractual obligation(s). Injunctions An order to stop doing something.
20
Background Tort means wrong in French, but in legal terms, it means a civil wrong. This section deals with tort law including duty of care, and defences to tort. Tort Law in General Tort law is used to enforce the duty of care between people. Thus, it has a slight overlap with criminal law except that a citizen, and not the government as in criminal law, brings the case to court. Negligence We deal mainly with the tort of negligence here and negligence has been defined in the Civil Liability Act as the failure to exercise reasonable care and skill. However, this negligence only applies if a duty of care was owed to the plaintiff. Duty of Care Duty of Care is most famously known in the Donoghue v Stevenson case. The test for duty of care is found in that case. It should be noted that there is no duty of care owed if the defendant did not create that risk. Testing for if a duty of care existed can include the following: Proximity test Neighbour test Foreseeability Reliance Knowledge of Risk Vulnerability of Plaintiff Compassion
However, there are established categories in the Civil Liability Act 2002 (NSW) where a duty of care always exists. This list is long, but the major ones are: Authorities and the public Drivers and passengers (road users) Manufacturers and consumers Professional advisers Occupier and visitor/tenant/trespasser A non-delegable duty of care also exists between: Employer and employee Hospital and patient School authorities and students Common walls Dangerous substances
21
Standard of Care
The standard of care that is expected is one, which a reasonable person would have done, in the same circumstances. The definition of a reasonable person is the matter that courts argue over most. It must be noted that even if harm exists, if the chance of harm occurring is too remote, or the cost of removing that harm is too high to justify it, a duty of care is not owed. This is reflected in Section 5B(2) of the Civil Liability Act 2002 (NSW). These are: Probability of harm occurring if care is not taken. Seriousness of the harm. Burden required to avoid the risk of harm. Social utility of the activity that creates the harm.
Paris v Stepney Borough Council is a case where the standard of care was breached. The employer should have provided goggles and insist that they be worn, but did not. Breach of Duty of Care A breach of duty of care is when the standard of care is not given to an individual. The Civil Liability Act 2002 (NSW) Section 5B(1) provides a test for negligence: Was the risk foreseeable? Only foreseeable damages are recoverable. The test for remoteness (known as the scope of liability in legislation) is applied here. Significant cases include The Wagon Mound cases. Was the risk significant? Would a reasonable person in the same circumstances have taken the same precautions?
To be able to recover damages, it must also be proven that the breach of duty of care caused damages in what is known as causation. The but for test is usually used here where, but for someones actions, damage was suffered. Cork v Kirby MacLean Ltd is a key case in causation. Defences for Negligence There are a few defences that can be used against negligence claims including: Contributory Negligence If the plaintiff contributed to the negligence, liability can be reduced by up to 100% (meaning all damages). In Liftronic Pty Ltd v Unver, damages were reduced by 60% because the employee did not follow rules the employer had set for lifting. Voluntary Assumption of Risk If the plaintiff knows of the risk, and accepts that risk, duty of care no longer exists. Vicarious Liability of Employer A person may be responsible for negligence, even though they did not cause it, because of legal relationships. For example, the negligence of an employee may be the responsibility of the employer. Good Samaritans and Volunteers As long as they act in good faith, good Samaritans and volunteers are exempt from being sued by the Civil Liability Act.
22
Background
Damages
Damages
should
be
rewarded
such
that
it
returns
the
plaintiff
back
to
the
position
they
were
in
prior
to
the
breach,
as
much
as
possible.
It
must
be
noted
that
the
plaintiff
has
the
duty
to
mitigate
their
losses.
For
example,
if
the
plaintiffs
property
is
suffering
water
damage
due
to
a
broken
pipe,
the
plaintiff
has
the
duty
to
immediately
try
and
take
remedial
action
and
not
leave
the
pipe
broken
and
unfixed,
possibly
resulting
in
even
more
damage
than
would
have
occurred
if
remedied
earlier.
The
purpose
of
damages
for
property
is
compensation.
Damages
to
persons
involve
compensation
for
monetary
(loss
of
income,
medical
expenses
etc.)
or
non-monetary
losses
(loss
of
ability
to
function
normally
etc.).
Negligent
Misstatement
A
duty
of
care
exists
when
there
is
reliance
on
the
other
party
of
information
or
advice
that
is
given,
especially
when
the
party
giving
that
information
has
special
skill
or
is
in
a
position
of
advantage.
A
key
case
in
negligent
misstatement
is
Hedley
Byrne
&
Co
Ltd
v
Heller
and
Partners
Ltd,
where
Hedley
lost
a
lot
of
money
in
contracts
it
had
made
with
a
client
and
it
had
relied
on
Hellers
advise
and
information
that
the
client
was
of
good
financial
standing.
It
must
be
noted
that
while
Hedley
lost
the
case,
it
was
because
an
exclusion
clause
specifically
excluded
liability
for
negligence.
Remember
that
exclusion
clauses
can
exclude
negligence
so
long
as
they
specifically
state
it.
Test
for
Negligent
Misstatement
The
Barwick
test
has
four
steps
to
determine
if
there
is
a
special
relationship
that
could
lead
to
negligence
misstatement:
1) The
speaker
must
assume
responsibility
and
realise
that
they
are
being
trusted.
2) The
subject
matter
is
of
a
serious
or
business
nature.
3) The
speaker
must
be
aware,
or
the
circumstances
show
they
should
be
aware,
that
the
listener
will
act
on
information
the
speaker
provides.
4) It
must
be
reasonable
to
assume
that
the
recipient
will
ask
for
and
rely
on
information
provided.
Accounting
and
Negligent
Misstatement
The
most
famous
case
related
to
accounting
is
Esanda
Finance
Corporation
Limited
v
Peat
Marwick
Hungerfords
(henceforth
Esanda).
This
case
created
a
precedent
where
auditors
were
not
liable
for
any
statements
that
are
transmitted
through
another
entity.
In
this
case,
it
meant
that
the
auditors
only
were
liable
to
the
company,
not
the
users
of
those
statements
outside
of
the
company
such
as
shareholders.
However,
this
was
overturned
by
statute
law
through
the
Corporations
Act
2001,
which
states
that
auditors
do
owe
a
duty
of
care
to
the
public.
As
such,
the
Esanda
case
no
longer
holds
precedent.
Business
and
the
Law
Semester
1
2011
23
Professional Negligence
As stated, professionals owe a duty of care where there is a special skill and there is reliance on that information given, by the weaker party. Professionals do not have a liability if peer professional opinion agrees that what occurred was widely accepted competent professional practice. Peer professional opinion does not have to be universally accepted, to be widely accepted. However, the court has the final say and if it considers it irrational, can override peer professional opinion. To avoid professional negligence, professional should always express doubts on opinion, disclaim liability if necessary and make clear if the advice should not be taken without other professional/legal advice.
24
Property Law
Background A study of property law is essential to any business. Businesses own property and they need to understand the rights they have with those assets. Real Property Real property is defined as land, and any fixtures attached to that land such as a house. Owning an area of land also gives the owner the right to space above and below that land, but only to an extent where it is necessary for ordinary use and enjoyment of the land and structures on it, as decided in Bernstein v Skyviews & General Ltd. For example, an aircraft flying 35,000 feet above someones house will not diminish use of the land, and, as such, is of no issue. However, a tree overhanging from a property next door may impede on enjoyment of the property. Ownership Systems Australia has two ownership systems, these being the Torrens Title and the Old System Title. Native title has also been used since it was created after Mabo v Queensland. Torrens Title The Torrens Title is the main system of land ownership where ownership of land is changed by registering changes at the Land Titles Office. This title shows all current legal interests on the land and sets up a priority system. This system is considered indefeasible in normal dealings. Exceptions to indefeasibility include: Fraud If a title was obtained fraudulently, then the title is considered defeasible. Personal Equity Claim Unconscionable conduct can lead to a claim of title. Constructive Trust For example: if a property is purchased jointly and only one pays the entire amount, this is regarded to be held in trust.
Under the Torrens Title, a person who has acquired an interest on the title does so free of unregistered interests. That is, it acquires the title without any other party holding material interest in the title. If two unregistered interests exist, the earlier gains priority, even if the later has notice of interest and the earlier does not. If the later party acquired interest for compensation, the earlier interest needs to be considered to see if they hold any interest. Old System Title Under the Old System Title, tracing ownership back to an undefeatable beginning proves ownership of land, which is usually when the government granted the land to an owner. Nowadays, 30 years is considered enough and a document from at least 30 years earlier is required to prove this in what
25
Remedies and Professional Negligence is known as a good root of title. This is usually a very time consuming and complex task and so, is only used on very few pieces of land, mostly in rural Australia that have still not converted to the Torrens Title.
Native Title Native title was recognised through the case Mabo v Queensland and it recognised that ownership of land was initially by indigenous Australians. Native title is used in areas where indigenous populations still follow their traditional laws and customs. Types of Land Ownership People who own a piece of land have unlimited and exclusive use of that land (Known as estate in fee simple). However, this can be subject to government powers such as planning laws. Life estates are properties given to another holder for their entire life. That property cannot be transferred to another owner until that person dies. Future interests indicate that someone has a right to the land at some point in the future. There are other types of ownership such as joint tenants, tenants in common and multi-ownership. Joint tenants have interests over the entire land at the same time and are like a single owner of the entire land. If one party dies, the other party automatically has all the deceased partys interests. The two parties have: Unity of interest The interests of both parties are identical in all forms. Unity of possession Each tenant is entitled to full use of the land and cannot exclude the other. Unity of time The interests must come into effect at the same time. Unity of title The joint tenancy must be created through the same legal document.
Tenants in common are similar to a joint tenancy except that each owner only owns a share of the land, instead of the entire land. Each party does not have rights over the whole land and their shares do not necessarily have to be equal. If one party dies, the title is passed over to a legal representative and not the other tenants. These tenants only have unity of interest. Multi-ownership includes the following: Retirement villages Mining/petroleum leases Company share ownership Time share Strata title Community title
26
If there exists more than one legal and/or equitable interest in a property, it is solved according to three principles: Leases Leases are split into residential or commerce leases. Accounting treatment differs for each. Leases can be: Fixed term: They start and end at a set date. Tenancies at will: They start at a set date but continue indefinitely until terminated at notice. One cannot give what one does not have. The person who is first in time has a stronger legal claim. Where the equities are equal, the law prevails.
Acquiring Property Ownership of property can be transferred by agreement (sale, gift, assignment by deed, declaration of trust or under a will), or without an agreement (administration, compulsory acquisition, court order or enforcement of an order). A property is conveyed to another owner through a process dealt with by solicitors or conveyancers. The process is: preparing the contract, exchanging and signing the contracts, searches and inquiries, arranging finances and then settlement. Caveats are written warnings made on the register to stop the owner from selling the property to someone else. It can be lodged by anyone with a legal or equitable interest in the land, such as a creditor. Choses A chose is a property right. It can be divided into: Chose in possession This is where there is a physical, tangible object, which is owned by someone. Being in actual possession of the physical item enforces this. Chose in action This is where there is an intangible item. It is enforced through the courts. For example, the right to sue someone is a chose in action. Chose in action is further divided into legal or equitable choses in action. Legal choses in action include: contracts, patents, copyrights etc.
Ownership
and
Possession
It
must
be
noted
that
there
is
a
difference
between
ownership
and
possession.
You
can
be
the
owner
of
something
but
not
be
in
possession
of
it
and
vice-versa.
A
landlord
can
own
a
property
but
may
have
lent
it
out
to
someone
else
who
has
possession
of
the
property.
The
owner
has
complete
legal
rights
over
the
property.
The
person
possessing
the
item
has
almost
absolute
right,
not
legal
right,
over
the
property,
except
against
the
legal
owner.
In
Waverley
Borough
Council
v
Fletcher,
the
council
owned
an
item
found
on
its
land
by
someone
else.
In
Armory
v
Delamirie,
Business
and
the
Law
Semester
1
2011
27
Remedies and Professional Negligence the goldsmith could not refuse to return the jewel to the person who handed it in because he had no reason to believe that he was not the legal owner.
Property as Security Property may be used as security by lenders. This allows the lender to take control of the property and sell it off to recover debt if the borrower does not and cannot repay the debt. The most prominent example is a mortgage, which is a security over real property. The real property is taken into possession by the lender if the borrower can no longer finance the debt. Intellectual Property The other half to property law is personal property. Intellectual property laws protect creative and intellectual works. These include: Copyright Covered in the Copyright Act 1968 (Cth), and does not allow original work to be reproduced without permission of the author. The work must be in a material form, be made and/or published in Australia. Most importantly, the work must be original. All published works are automatically copyrighted; there is no need to apply etc. Copyright is valid for 70 years after the last authors death. If it is an unpublished work, it is valid for 70 years after the date of first publication. Remedies: Injunctions, Damages, Lost Profits, Criminal Proceedings. Designs Covered by the Designs Act 2003 (Cth), and protects a new, distinctive and unique design. It allows entities to exploit their designs for a 10-year period by giving it exclusivity to its design. One must apply to IP Australia to gain protection. Remedies: Injunctions, Damages, Account of Profits. Patents Covered by the Patents Act 1990 (Cth), and gives the inventor a monopoly over a new innovation. A patent is given for 20 years (up to 25 in pharmaceutical patents), but patents judged to not be sufficiently inventive (innovation patents) are only patented for 8 years. Patents must be something that can be manufactured, must be new, involves something innovative and is useful. The public, prior to application, must also have not known about the patent in any shape or form. Remedies: Injunctions, Damages, Account of Profits, Inspection Orders. Trademarks Covered by the Trade Marks Act 1995 (Cth), and allows a sign or badge to be used to identify certain goods and services. Initial registration is for 10 years but can be extended in definitely. Trade marks can be given on a variety of things including colours, scents, shapes and sounds although they must be unique and clearly identifiable with the brand. Remedies: Injunctions, Damages, Account of Profits. Confidential Information This can be protected through the use of contracts and/or by equitable actions. To prove that there was a breach of confidentiality, it must be proven that the information was known to be a secret on both sides, and that unauthorised used brought detriment to the one who told the secret. Remedies: Injunctions, Account of Profits, Destruction, Seizing Evidence.
28
Consumer Law
Consumer Law
Background This section looks at how laws protect consumers from conduct by manufacturers and retailers. It also looks at the defences and remedies should any issues arise. Australian Consumer Law The Australian Consumer Law (ACL) is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth). The CCA is a new piece of legislation that came into effect on 1 January 2011 and was previously known as the Trade Practices Act 1974 (Cth). The Australian Competition and Consumer Commission (ACCC) is responsible for administering the CCA. The ACCC has great power under Section 155, which allows it to search and seize evidence under a reason to believe requirement. The CCA is used to protect consumers in trade or commerce. A consumer is defined by the ACL in Section 3 as a person who acquires goods or services of a kind ordinarily acquired for personal, domestic or household use. For goods, they must be used as an end product and not further resold or transformed for trade. The CCA also only applies to situations that have a trade or commercial element in it. A private sale does not constitute a trade and is thus, not covered by the CCA. Unconscionable Conduct Sections 20 and 21 of the ACL provides consumers and small businesses, protection from unconscionable conduct if they are in a special disadvantage such as of age, sickness, illiteracy, poverty and language. A key case is Commercial Bank of Australia v Amadio where the Amadios did not speak or read English well and were exploited by the bank into entering a contract which was different to what they thought it was. The defendants knew about this and thus, their actions were unconscionable. Section 22 of the ACL provides a checklist for unconscionable action. This is: The relative bargaining power of each side Did the consumer have to comply with conditions that were deemed not reasonably necessary? Did the consumer understand the documentation? Was there any undue pressure, influence or unfair tactics? Could the consumer have obtained the good or service from another provider?
Misleading
or
Deceptive
Conduct
Section
18
of
the
ACL
states
that
no
one
shall
engage
in
trade
or
commerce
that
is
misleading,
deceptive
or
will
likely
mislead
or
deceive.
This
section
is
not
restricted
to
just
consumers
and
can
be
used
between
commercial
entities.
The
courts
have
decided
that
something,
which
would
lead
an
ordinary
member
of
the
public,
who
reads
the
statement
(such
as
a
promise
or
prediction
etc.)
or
is
influenced
by
it,
into
error,
is
misleading
or
deceptive.
Leading
someone
to
make
an
error
is
counted
as
being
misleading.
Leading
someone
to
believe
Business
and
the
Law
Semester
1
2011
29
Consumer Law something that is false is deceptive. Mere confusion and/or uncertainty do not constitute misleading or deceptive conduct as seen in McWilliams Wines Pty Ltd v McDonalds System of Australia Pty Ltd.
Note that, no one has to be misled or deceived for successful action to be taken. There just needs to be the real possibility that someone could be misled or deceived. Since this action takes into account the public, we need to identify the class of persons who will most likely be affected by the conduct. Once this group is defined, all that needs to be proved is that just one person in that group will be likely misled or deceived for the case to be successful. It should be noted that conduct which is puffery (self-evident exaggeration) that are used as promotional statements in advertising are not taken literally and do not constitute misleading or deceptive conduct. Silence can also be considered misleading or deceptive conduct. If you know that by not telling someone a fact, that they will make the wrong decision, this can amount to misleading or deceptive conduct. Remedies for breaches of Section 18 of the ACL are normally injunctions. Damages are only awarded if the conduct has actually caused loss or damage. False Representations Section 29 of the ACL states that businesses must not make false or misleading representations about goods or services they provide. This is regarded as a criminal offence and the ACCC may undertake criminal proceedings. Damages may also be provided for the injured party. Section 29 has 14 subsections, which list what a business cannot falsely represent. Other Unfair Practices Other unfair practices include: Bait Advertising Section 35 A special price cannot be offered if it is not intended that these goods or services be offered for a reasonable period and in a reasonable amount. No Wrongly Accepting Payment Section 36 Payment cannot be accepted if you know you cannot supply the promised good or service. No Misleading Representations about Certain Business Activities Section 37 No misleading or false representations about business opportunities. Referral Selling Section 49 A person shall not induce a consumer to acquire goods and services by providing them with a list of other customers who they can sell the goods and services to. No Harassment and Coercion Section 50 Pressure, physical force, undue harassment or coercion cannot be used. Pyramid Selling Sections 44 to 46 A structure where a promoter sells participant a good, the right to sell that good and to introduce others to the scheme. Both promoter and seller are liable when caught. Unsolicited Credit Cards Section 39 Credit cards and debit cards cannot be sold unless directly requested by the consumer.
30
Unsolicited Goods or Services Section 43 Goods and services that are not requested do not have to be paid for by a consumer.
Consumer Law
Defences Defences used for a breach of the ACL include: That is was due to a reasonable mistake. That is was on reliance on information provided by someone else. That it was caused by another persons fault. That it was due to accident and/or beyond the defendants control.
Remedies Enforcement and remedies differ depending on the breach. Unconscionable Conduct $1.1m per offence for a corporation and $220,000 per offence for a person. Injunctions may apply, as well as possibility of cancelled/voided contracts and others. Misleading or Deceptive Conduct No fines but there may be injunctions and damages awarded. May also be told to run corrective advertising, refund, compensate or provide community service. False Representation $1.1m per offence for a corporation and $220,000 per offence for a person.
Implied Conditions Consumers are afforded a variety of non-excludable conditions and warranties under the CCA and businesses cannot exclude these. These are found in Sections 51 to 58 of the ACL. As a direct consequence, no refund signs found in stores may be misleading in that they mislead consumers as to their actual legal rights afforded under the CCA. Stores should be very careful when placing no refund signs.
31
Competition Law
Competition Law
Background Other than protecting consumers, the other aim of the Competition and Consumer Act 2010 (Cth), is to promote competition and fair-trading amongst businesses. The Two Tests Competition law is largely based around two tests, these being the Competition Test and the Per Se test. The competition test questions if the activity in question will substantially lessen competition. If it does not, it fails this test and is not in breach of law. The Per Se test does not ask this question. Simply breaking the rule will be a breach of the law. In determining these two tests, it is crucial to define the market by asking, Who is the competition? We need to look at the product, geographic location and the time period of that market. Anti-Competitive Agreements Section 45 of the CCA prohibits any contracts, arrangements or understanding that breaches the competition test or contains an exclusionary provision aimed at getting rid of competitors. There needs to be: A contract, arrangement or understanding A purpose An effect or likely effect A substantial lessening of competition
A
key
case
for
anti-competitive
agreements
is
ACCC
v
Visy
Industries
Holdings
Pty
Ltd.
Visy
and
Amcor
held
90%
of
the
market
in
total
and
agreed
to
an
elaborate
scheme
including
price
fixing
(discussed
later).
This
of
course,
substantially
lessened
competition
in
the
market,
given
the
market
share
between
them.
Exclusionary
provisions
are
designed
with
the
purpose
of
limiting,
restricting
or
preventing
an
entity
from
doing
something,
similar
to
a
boycott.
In
News
Ltd
v
South
Sydney
District
Rugby
League
Football
Club
Ltd,
South
Sydney
was
not
included
in
the
14
team
NRL
and
appealed,
however,
it
was
determined
that
the
prevention
was
not
something
which
was
agreed
to.
Rather,
it
was
just
an
unintended
effect
and
as
such,
was
not
illegal.
There
must
be
an
intention
to
do
such,
before
it
is
illegal.
Exclusive
Dealings
Section
47
of
the
CCA
deals
with
exclusive
dealings,
which
are
exclusivity
arrangements
imposed
by
either
supply
or
buyer
such
as:
Product
Exclusivity
Forced
to
buy
or
supply
a
specific
amount
of
a
product.
Customer
Exclusivity
Forced
to
only
deal
with
one
(or
a
select
number
of)
supplier
or
buyer.
Territorial
Exclusivity
Supplier
or
buyer
only
deals
with
one
area
exclusively.
An
exclusive
dealing
is
only
a
breach
if
it
breaches
the
competition
test.
Business
and
the
Law
Semester
1
2011
32
Competition Law
A
case
of
customer
exclusivity
is
found
in
Universal
Music
Australia
v
ACCC.
It
was
found
that
Universal
threatened
to
stop
supplying
CDs
if
retailers
were
found
to
be
dealing
with
other
resellers
of
Universals
music.
This
was
aimed
at
wiping
out
competition
from
importers.
Mergers
Section
50
of
the
CCA
prohibits
mergers
from
going
ahead
if
they
breach
the
competition
test.
Breaches
in
section
50
usually
never
occur
after
a
merger
because
a
merger
is
always
reported
to
the
ACCC,
who
will
state
if
they
will
allow
or
not
allow
the
merger.
In
periods
of
economic
decline,
mergers
that
would
normally
not
be
allowed
may
be
allowed
in
the
general
interests
of
the
economy
as
a
whole.
It
is
better
for
companies
to
merge
together
and
stay
afloat
than
to
have
them
collapse
and
further
destroy
the
economy.
Cartel
Conduct
Section
44ZZRA
to
44ZZRV
of
the
CCA
prohibits
cartel
conduct
such
as
price-fixing,
restriction
of
outputs/production,
allocation
of
customers,
suppliers
or
territory
and
rigging.
Cartel
conduct
is
a
per
se
breach
meaning
that
it
is
a
breach,
no
matter
the
impact
on
competition.
It
is
also
the
only
conduct
under
the
CCA,
which
is
a
criminal
offence.
ACCC
v
Visy
Industries
Holdings
Pty
Ltd
was
a
key
case
in
making
cartel
conduct
a
criminal
offence.
Breaches
of
the
CCA
include
up
to
10
years
jail
and
fines
of
up
to
$220,000
for
an
individual.
This
is
$10
million,
or
3
times
the
benefit
of
the
cartel,
or
10%
of
annual
turnover
if
value
cannot
be
determined.
Third
Line
Forcing
Sections
47(6)
and
47(7)
of
the
CCA
deals
with
third
line
forcing
which
is
where
a
party
forces
another
party
to
deal
with
a
third
party
(i.e.
A
forces
B
to
deal
with
C).
For
example,
when
buying
a
car
from
a
dealer,
the
dealer
cannot
force
the
buyer
of
the
car
to
have
to
choose
a
certain
insurance
company
as
this
will
amount
to
third
line
forcing.
The
car
dealer
can
have
a
preferred
insurance
company
but
it
must
allow
the
customer
to
have
a
choice.
Third
Line
Forcing
is
a
per
se
breach
meaning
it
is
always
illegal.
A
key
case
is
Castlemaine
Tooheys
Ltd
v
Hodgson
Transport
Pty
Ltd.
Tooheys
supplied
beer
to
northern
Queensland
and
had
a
preferred
carrier,
which
most
customers
chose
to
use.
Hodgson
believed
it
was
third
line
forcing
because
everyone
was
using
the
preferred
carrier.
It
was
noted
that
customers
had
a
choice
in
carrier,
but
most
ended
up
choosing
the
preferred
carrier.
As
such,
this
was
not
third
line
forcing.
It
would
have
been
third
line
forcing
is
Tooheys
forced
customers
to
use
their
carrier.
Resale
Price
Maintenance
Section
48
of
the
CCA
prohibits
resale
price
maintenance.
This
is
where
a
supplier
dictates
the
lowest
price
at
which
a
supplied
product
or
service
may
be
resold
for.
Dictating
a
maximum
selling
price
is
not
prohibited.
This
is
a
per
se
breach.
The
supplier
does
not
have
to
explicitly
state
that
it
cannot
be
sold
at
a
certain
price.
Actions
can
also
count
as
conduct.
If
a
supplier
stops
supplying
because
the
retailer
is
selling
too
low,
this
is
also
considered
resale
price
maintenance,
even
though
it
is
not
explicitly
stated.
In
ACCC
v
Jurlique
International
Pty
Ltd,
Jurlique
only
supplied
products
under
the
condition
that
resellers
did
not
sell
for
lower
than
agreed
specific
prices.
ACCC
fined
Jurlique
$3.2m
for
this
breach.
Business
and
the
Law
Semester
1
2011
33
Competition Law
Section 46 of the CCA states that if a corporation has a substantial amount of market power, it must not take advantage of that to either eliminate competitors, prevent entry of new competitors or deter competition. In Queensland Wire Industries Pty Ltd v The Broken Hill Proprietary Co Ltd, Broken Hill supplied the majority of Y-bar wire fencing in rural Australia. Queensland Wire asked Broken Hill to supply the Y-bar component so that it could also compete and supply Y-bar wire fencing. However, Broken Hill, wanting to keep its market share, offered to sell the Y-bar component at such a high price to Queensland Wire that it was not affordable and competitive. Broken Hill was thus, found to be misusing its market power. Melway Publishing Pty Ltd v Robert Hicks Pty Ltd shows that even though someone has market power, as long as they are not misusing it, they are not doing breaching any laws. ACCC Overruling The ACCC can overrule over the CCA for a variety of reasons. It does this mainly in two ways: Authorisation The ACCC can authorise behaviours listed above so long as the benefit outweighs the anticompetitive detriment. Does the conduct bring higher efficiency? Promote growth in the industry? Boost the economy? Provide lots of local jobs? Authorisations can be given to exclusionary provisions, anti-competitive agreements, exclusive dealings, resale price maintenance and mergers. Notification Businesses can lodge notification with the ACCC that they are going to breach the exclusive dealing and third line forcing provisions of the CCA. The ACCC then has two weeks to turn around and ask the business to stop the dealing.
Penalties The ACCC for a breach of competition law by a corporation is the higher of: $10 million Three times the value of the illegal benefit 10% of annual turnover
Individuals will also face a penalty of up to $500,000 per offence. As noted, those undertaking cartel conduct can also be jailed by up to 10 years per offence. The court determines how severe the penalties are based on a variety of factors such as: Degree of power Time Deliberateness Involvement of senior management Corporate culture Disposition to operate Similar conduct in the past 34
Competition Law
The ACCC may negotiate an agreed statement of facts and agree to a penalty before being placed into court. The ACCC may allow discounts on penalties for cooperation by the defendants as seen with Cabcharge. Other than damages, courts can also order injunctions, divestiture, punitive orders, and non- punitive orders. Defences Sometimes, if conduct is purely accidental, and the person acted honestly and reasonably, the ACCC may fairly excuse the conduct. Mitigating factors may also be present and the penalties may be waived or reduced. Joint ventures need to establish that the conduct was for the sole purpose of the joint venture, and that it did not substantially lessen competition in the relevant market.
35
Background White-collar crime is prevalent in the modern world, and it is shaping up to be just as serious as other offenses such as murder and manslaughter. Crime is a public implication where victims exist. The State or Crown usually intervenes and brings a criminal case to court, instead of a private entity, to protect the integrity of the state and society. Criminal Law Criminal law in Australia is guided by the Criminal Code Act 1995 (Cth) and the Crimes Act 1900 (NSW). The aim of criminal law is to punish those that commit crime. It also serves to deter and discourage people from committing crime through fear of punishment. It also serves to incapacitate by putting those who commit crimes, out of society (ie. Jail). It also provides for rehabilitation of criminals. Classification of Crime Crimes are broadly classified into two categories: Summary Offences (Misdemeanour) These are small and less serious offences such as driving offences and vandalism. They are dealt with very briefly and do not involve a jury. Indictable Offences (Felony) These are much serious offences such as murder and assault. These are tried with a jury and/or judge present.
The Adversarial System Australia uses the adversarial system, which is adopted, by countries with a common law system. This means the two parties argue against one another and a judge and jury preside over those dealings, ultimately making a judgement based on facts presented. Countries with a civil law system use the inquisitorial system where a judge investigates the case by talking to both parties. Judges and Juries In criminal cases, juries are the ones that make a decision based on the facts and evidence presented to them by both parties. The judge is there to help guide the jury by explaining and applying the law. As such, it can be said that a judge questions the law while a jury questions fact. Juries are advantageous in that: They allow the community to have a say in the legal process. They safeguard against abuse of judicial power. They make sure the system does not become to legalistic.
However,
juries
are
quite
expensive.
They
also
may
not
represent
the
entire
community
as
many
skip
or
avoid
jury
duty,
because
there
are
many
allowable
exceptions
(ie.
Lawyers
cannot
be
jury
members.
Business
and
the
Law
Semester
1
2011
36
Crime in the Business World People who know the parties involved are not allowed etc.). The public may also not understand how the law works. Most importantly, they may be influences by their own personal or public opinion.
In criminal cases, it must be proven that there was a mens rea (intention to commit crime) and an actus reus (actual crime committed). Who can be prosecuted? Children under the ages of 10 are considered to be unable to commit and crime. Children between the ages of 10 and 14 can be convicted if it can be proven that they knew that they were committing a crime. For corporations, criminal charges are normally laid on those who are the directing minds of the corporation. That is, those that formulated the criminal offence, usually being senior management. A lowly employee will not be charged unless it is proven that they contributed significantly to the crime. White Collar Crime White-collar crime is crime committed in the business world such as fraud. The law criminalises such activities. They are much more difficult to detect and prosecute than normal crimes due to their very complex nature. Computers are increasingly being the tool and also the target of criminal activity such as hacking, falsification of documents and fraud. Examples of some offences are: Deception resulting in personal gain. Embezzlement Fraud False Accounting
37
Risk Management
Risk Management
Background Corporate collapses as a result of white collar crime is increasing, meaning that risk management is more important than ever, including compliance and due diligence. Note that there is no one risk management policy that will work perfectly for all businesses. Different businesses will have different types of risk and as such, require different policies. Risk Management Risk management involves identification, assessment, management and communication of risks. There are a variety of risks including: Market Risk Credit Risk Reputational Risk Legal Risk
It should be noted that risk management also deals with issues that are non-mandatory. A corporation does not have to manage certain types of risk, but they may elect to do so. Ultimate responsibility for risk management is placed on senior management such as the Board of Directors. Compliance Compliance is all about meeting particular obligations that are mandatory. Risk management involves ensuring that compliance is completed through responses such as: Training of staff Implementing control procedures Monitoring Resource allocation
It must be noted that compliance is only beneficial to stop breaches and not to manage breaches that have occurred. Due Diligence Statute law is lenient with businesses that have undertaken all that they reasonably can to prevent a breach, but still end up breaching. The ACCC has a leniency policy that either reduces the fine, or waives the fine, provided that the business: Implements policies and controls to ensure that the breach will never occur again. Make risk management modifications to prevent further violations. Cooperates with the ACCC.
38