Criminal vs Civil Law
Who has the burden on proof in a civil and criminal case.
Civil: Plaintiff
Criminal: Prosecution
Identify the two different types of civil law
Contract law
Tort Law
Name five different types of Alternative Dispute Resolution.
Mediation
Conciliation
Arbitration
Case appraisal
Tribunal
Courts
Ombudsman
Provide two examples of how you could recieve and offer.
Joe: I’ll give you $10 if you wash my car (Spoken offer)
Buyer signs a contract to buy a house (Written offer)
You take a drink to the checkout and give money (offer implied by conduct)
Explain the difference between express terms and implied terms.
Express terms can easily be identifiable where they are written on a contract.
Implied terms are those which can be logically assumed by the person entering the contract.
Define an injunction.
Injunction is a court order restraining a person for doing a wrongful act.
For example, there may be a term in the contract which prevents the defaulting party from doing something during the term of the contract. If the defaulting party ignores the restricting term of the contract, the other party may apply for an injunction prohibiting the defaulting party from taking the action.
In which piece of legislation is the Australian Consumer Law situated.
Competition and Consumer Act 2010
What is the standard of proof in a criminal and civil case.
Civil: balance of probabilities (more likely than not)
Criminal: Beyond reasonable doubt
What are the two types of law primarily used by judges in civil law proceedings.
Common Law
Statute Law
Identify on advantage and disadvantage of conciliation as a ADR method.
Conciliation Advantages:
Early resolution saves time, money, and emotional stress; informal process helps parties feel comfortable.
Parties can express feelings and seek flexible remedies with the help of an independent expert.
Private and confidential process, with the option to go to court if unsatisfied.
Conciliation Disadvantages:
Focuses on outcomes rather than justice, requiring compromise from both sides.
Conciliators lack the authority of judges, and there is no independent claim determination.
Limited time for detailed discussion, and strong emotions can hinder early concessions.
Define invitation to treat and include an example.
Invitation to treat – an invitation to make an offer or what might appear to be an offer is a mere willingness to trade or deal.
Example – a shop owner displaying goods is inviting customers to make an offer.
Define a condition.
Conditions are the fundamental terms of a contract without which it is likely that the contract would never have been entered into.
Define damages.
When one party is entitled to sue the other for breach of contract there is no point in doing so unless the breach has caused a loss. The loss is referred to as damages.
Purpose of the damages are to place the innocent party in the same position as if the contract had been fully performed.
Money is usually used for damages.
What does Caveat emptor mean?
"let the buyer beware"
Who are the parties who could be involved in civil and criminal proceedings?
Criminal: the state (government) and the defendant (accused)
Civil: Person v Person, Person v business, business v business
Define Precedent
The process whereby courts are obliged to follow the decisions (the ratio decidendi) of the higher courts in the hierarchy, unless they can be distinguished.
Explain two differences between mediation and arbitration.
Mediation
- Mediator’s power is restricted to control of the process and does not make decision.
- no legally binding outcome
- Informal discussion of the parties’ concerns which allows for the venting of emotional issues.
Arbitration
- The third party has the consent of the parties to impose a decision which will be legally binding upon them.
- legally binding outcome
- A more formal process than mediation or conciliation.
Identify the three fold test to determine certainty of if a contract exists.
1. Was there an agreement between the two parties? (intention to create legal relations) (Commercial settings – assumption of intention)
2. Did they intend their agreement to be legally binding? (offer and acceptance)
3. Was the agreement supported by consideration? (consideration)
Explain what is meant by contracts for necessaries.
An infant who contracts for necessaries is bound by that contract.
Necessaries include basic items such as food, clothing, health care, education and can extend to items and services that are reasonable to maintain a standard of living in society.
Sufficiency and the timing of the supply of the goods is taken into account ie how much you already have.
Define Quantum meruit.
The Latin translation of quantum meruit is ‘how much he has deserved’.
Identify two consumer guarantees from ACL.
Supplier must have a right to sell (s51)
Consumer has a right to undisturbed possession of the goods (s52)
Goods must be free from any security, charge, or encumbrance not disclosed to the consumer (s53)
Goods must be of acceptable quality (s54)
Goods must be reasonably fit for any disclosed purpose (s55)
Goods must match their description (s56).
Goods must match the sample or demonstration model (s57).
Manufacturer of goods must take reasonable action to ensure that facilities for repair and parts for the goods are reasonably available for a reasonable period (s58).
Supplier and manufacturer must comply with any express warranty given or made by the manufacturer (s59)
Explain the objectives of civil and criminal law.
Civil: to redress the wrong that has been done (right the wrong)
Criminal: to punish the wrongdoing or deter others from doing such crimes
Define Obiter dictum.
Refers to a judge's comments or observations, in passing, on a matter arising in a case before him which does not require a decision. Obiter remarks of senior judges, may be indirectly instructive or persuasive, especially in areas in which the law is developing.
Explain the purpose of QCAT and its limitations.
- Independent, accessible, quick, inexpensive and efficient
- QCAT has wide-ranging jurisdiction, including adult guardianship matters, reviewing administrator decisions, building disputes, consumer disputes, residential tenancy disputes, retail shop leases and tree disputes.
- Monetary limit of $25,000
Are the following statements true or false?
Offer must be actually communicated
Acceptance can occur without actual communication
True
Identify three ways you could discharge a contract
By performance – both parties have done what they promised to do
By agreement – contract is ended when both parties agree that they no longer wish to continue and there is mutual agreement to end the contract
By operation of the law – statute specifies that contracts will be ended if certain specified things occur eg bankruptcy
Frustration
Breach of Contract
Define unjust enrichment.
Unjust enrichment is the legal principle that no person should make an unjust gain through another’s loss.
Identify two unfair practices from ACL.
misleading or deceptive conduct (s18)
unconscionable conduct in connection with goods and services (s21)
false and misleading representations (s29)
offering rebates, gifts, prizes etc. with the intention of not providing it, or of not providing it as offered (s32)
misleading conduct as the nature etc. of services or goods (s33, s34)
bait advertising (s35)
wrongly accepting payment (s36)
misleading representations about certain business activities (s37)
What are the potential outcomes of civil and criminal law
Civil: compensation or injunction
Criminal: fines, community service, jail, etc
Define Ratio decidendi.
“The reason for the decision.” It forms the legally binding precedent element of the judgment. In the context of law, it refers to the legal principle or principles that a court uses to reach its decision in a particular case.
Explain the difference between the ombudsmen and ACCC with issues in consumer law.
Ombudsman
Purpose: An Ombudsman is an independent, impartial entity that helps resolve disputes between consumers and businesses or public organizations. They often handle complaints related to services, such as utilities, telecommunications, or financial services, rather than just products.
Focus: The Ombudsman’s role is to investigate and mediate specific complaints, providing a fair resolution without the need for legal action. They typically deal with individual cases where a consumer feels they've been treated unfairly.
Scope: They may not have the power to enforce decisions but can recommend resolutions and ensure fair practices are followed.
ACCC (Australian Competition and Consumer Commission)
Purpose: The ACCC is a national regulatory authority responsible for enforcing consumer protection laws and promoting competition. When it comes to complaints about products, the ACCC focuses on broader issues of compliance with consumer laws, such as misleading advertising, unsafe products, or anti-competitive behavior.
Focus: The ACCC handles systemic issues that affect a larger group of consumers rather than individual disputes. They may take legal action against businesses that violate consumer laws.
Scope: The ACCC has enforcement powers, including the ability to impose fines, pursue legal actions, and issue recalls for unsafe products.
An agreement with your parents that they pay you a certain amount for mowing the lawn. However, after you mow the lawn, they discover that you haven’t done your homework, so they don’t pay you.
1) What type of agreement is this
2) Do they need to pay you?
1) Domestic Agreement
2) These agreements are not legally binding and they would not need to pay you.
What is the likely outcome of a breach of warranty?
If a warranty is breached, you can claim damages (compensation) for any loss, but you are not entitled to treat the contract as at an end (void).
Explain what a standard form contract is an issues with them.
Standard form contracts are a commonly used and cost-effective option when conducting business, as they avoid the transaction costs associated with negotiated contracts…
However, consumers and small businesses often lack the resources and bargaining power to effectively review and negotiate terms in standard form contracts.
Identify two situations when a customer would not be entitled to a repair, replacement or refund.
changes their mind (although if a business has a ‘change’ of mind’ policy, they must follow it)
asked for a service to be completed a particular way (going against the advice of the service provider)
knew about the problem but decided to buy a product anyway (for example, you knew the car roof leaked)
misuses a product.