Contents
Appellant or Applicant ... 3
Appellate jurisdiction ... 3
Australian Consumer Law (ACL) ... 3
Burden of Proof (Onus) ... 4
Capacity ... 4 Civil Law ... Error! Bookmark not defined.
Civil Law System ... Error! Bookmark not defined.
Collateral Contract ... Error! Bookmark not defined.
Commercial Agreements ... Error! Bookmark not defined.
Common Law (Case Law) ... Error! Bookmark not defined.
Common Law System ... Error! Bookmark not defined.
Condition ... Error! Bookmark not defined.
Condition Precedent ... Error! Bookmark not defined.
Condition Subsequent ... Error! Bookmark not defined.
Consideration ... Error! Bookmark not defined.
Consumer Guarantees within ACL ... Error! Bookmark not defined.
-Goods (guarantee as to): ... Error! Bookmark not defined.
-Supply of Services (Guarantee as to): ... Error! Bookmark not defined.
Contracts under seal ... Error! Bookmark not defined.
Criminal Law ... Error! Bookmark not defined.
Crown ... Error! Bookmark not defined.
Damages ... Error! Bookmark not defined.
Defendant ... Error! Bookmark not defined.
Doctrine of precedent ... Error! Bookmark not defined.
(the principle of stare decisis) ... Error! Bookmark not defined.
Doctrine of Precedent ... Error! Bookmark not defined.
Doctrine of the Separation of Powers ... Error! Bookmark not defined.
Duress ... Error! Bookmark not defined.
Elements Essential to Contract ... Error! Bookmark not defined.
Exclusion/Exemption Clause ... Error! Bookmark not defined.
Express Term ... Error! Bookmark not defined.
Extent to which remedies can be excluded ... Error! Bookmark not defined.
Gratuitous promise ... Error! Bookmark not defined.
Implied Term ... Error! Bookmark not defined.
Manufacturers’ (s7) liability and consumer guarantees limitations: s271 ... Error! Bookmark not defined.
Misrepresentation ... Error! Bookmark not defined.
(Element 5-Consent) ... Error! Bookmark not defined.
Mistakes ... Error! Bookmark not defined.
(Element 5- Consent [Genuine]) ... Error! Bookmark not defined.
Obiter Dictum... Error! Bookmark not defined.
Original Jurisdiction... Error! Bookmark not defined.
Parol Evidence Rule ... Error! Bookmark not defined.
Plaintiff ... Error! Bookmark not defined.
Practical Benefit Test ... Error! Bookmark not defined.
Precedent ... Error! Bookmark not defined.
Promisee ... Error! Bookmark not defined.
Promisor ... Error! Bookmark not defined.
Promissory Estoppel ... Error! Bookmark not defined.
Public Law ... Error! Bookmark not defined.
Private Law ... Error! Bookmark not defined.
Ratio Decidendi ... Error! Bookmark not defined.
Remedies- Breach of contract ... Error! Bookmark not defined.
Remedies for non-compliance with consumer guarantees ... Error! Bookmark not defined.
Representation ... Error! Bookmark not defined.
Respondent ... Error! Bookmark not defined.
Social Agreements ... Error! Bookmark not defined.
Standard of Proof ... Error! Bookmark not defined.
Stare decisis ... Error! Bookmark not defined.
Statutes (Legislation) ... Error! Bookmark not defined.
Terminate Contract ... Error! Bookmark not defined.
Terms ... Error! Bookmark not defined.
Three rules of interpretation ... Error! Bookmark not defined.
Types of damages ... Error! Bookmark not defined.
Unconscionable conduct ... Error! Bookmark not defined.
(E5-Consent)... Error! Bookmark not defined.
Undue Influence ... Error! Bookmark not defined.
Void ab initio ... Error! Bookmark not defined.
Voidable ... Error! Bookmark not defined.
Warranty ... Error! Bookmark not defined.
Australian courts and tribunals (including those of the states and territories) can enforce the ACL, including the Australian Competition Tribunal (ACT) or QCAT.
Appellant or Applicant
- A person appealing against a previous decision and who can be either the plaintiff or defendant from the first case Appellate jurisdiction - Is the authority of a court to
hear appeals from decisions of courts of a lower level in the same court hierarchy - Every court has an original
jurisdiction, and with the exception of the Magistrates Court, an appellate jurisdiction Australian Consumer
Law (ACL)
- ACL covers consumer protection and its provisions are location in (Volume 3) Schedule 2 of the Competition and Consumer Act 2010 (CCA)
- It’s primary purpose is to protect consumers from the unfair practices of
businesses - in effect it is a response to the
recognised need for new systems and procedures to protect consumers under one national law, rather than
many, different but similar laws across the Nation
Misleading and deceptive conduct in the ACL
- Section 18(1): “A person must not, in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”
- “Before a statement can be said to be misleading or deceptive or falsely to represent a fact, it must convey a meaning inconsistent with the truth. A
- World Series Cricket Pty Ltd v Parish (1977)
- O’Brien v Smolnogov (1983)
- Henjo Investments Pty Ltd v Collins
Marrickville Pty Ltd (1988)
statement which conveys no meaning but the truth cannot mislead or deceive or falsely represent; although a statement which is literally true may nevertheless convey another meaning which is untrue, and be proscribed accordingly.”
- In trade or commerce: a trading or commercial character
- Conduct: a representation about a future matter (e.g. prediction or opinion).
- Section 4: If there are no reasonable grounds for making the representation, the law
presumes it to be misleading.
Conduct can also be silence:
- Misleading: “to lead astray n action or conduct; to into error, to cause to err.”
- Deceptive: to deceive – “to cause to believe what is false.”
- Likely: more probable than not
- McWilliam’s Wines Pty Ltd v McDonald’s Pty Ltd (1980)
- Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994)
Burden of Proof (Onus)
- Defines who has to prove their case/ applies to the party needing to prove the case - In an original jurisdiction – the
plaintiff carries the burden of proof.
- In an appellate jurisdiction – the appellant carries the burden of proof.
Capacity Person able to carry out contract
Minors
Valid Contracts Paying Cash Necessaries
- articles and services necessary for the reasonable comfort of the minor 1. Goods/services could be necessaries 2. Goods/services were necessary at the time
Beneficial contracts of service -employment, training, education 1. Beneficial terms outweigh onerous (bad) terms
2. Is there benefit to the minor Voidable Contracts
Minors (18 yrs)
Statute: Law Reform Act 1995 (Qld)
Necessaries
Bojczuk v Gregorcewicz- Polish girl immigrated-plane ticket not necessary (1.)
Scarborough v Sturzaker- Bikes traded and bought (2.) Beneficial contracts of service -Hamilton v Lethbridge- articled clerk & restraint of trade but c/f
-De Francesco v Barnum- seven year, stage dancing apprenticeship
1. Those contracts which are binding unless REPUDIATED (can terminate when 18)
-shares, leases, partnerships, marriage settlements
-Rescission only ends future liability if benefit accrued
2. Those contracts which are not binding unless RATIFIED
-Those that are not of a continuing nature, for example, goods and services that are not necessaries
Void Contracts
- Contracts cannot generally be enforced during infancy
- nor after attaining majority, unless the (now) adult elects to RATIFY it: within a reasonable time after age of majority -minor is not liable on a contract to repay a loan, even if the loan has been given for the purchase of necessaries within a reasonable time after attaining the age of majority
Mentally unsound/intoxicated persons -liable for contracts of necessities -all other contracts will be voidable if:
-incapable of understanding what they were agreeing to
-other party aware or should have been aware of incapacity
