Flashcards in Davors Deck Deck (99):
What can common law be made by?
Parliament, and Judges
What is common law?
Law system influenced by England.
What is civil law?
A system which relies on statutory rules, often in a code.
What legal system does Australia have?
When was Australi's legal system established and what was it?
1788 - British declared Terra Nullius - 'Empty Land'.
What six Australian colonies federated and when?
NSW, VIC, QLD, WA, SA, TAS - 1st January 1901.
What is the Australian Constitution?
Constitution which allowed Australia to make and apply law in Australia in 1900.
What did the Australian Constitution establish?
Framework for national governance, federal parliament and government, six state governments, power to make state-only laws.
What does the high court do?
Interprets constituion, decides meaning, settles disputes between federal and state governments.
Which law prevails in conflicts between state and federal levels?
What three groups is in the separation of power?
Parliament, Executive, Judiciary
In separation of powers, what does parliament do?
Parliament makes and amends written law (Senate/House of Reps).
In separation of powers, what do executives do?
Executive (government depts.) puts written law into action.
In separation of powers, what does the judiciary do?
Judiciary (Judges/High court) interprets and makes judgements about written and unwritten law.
What levels of local government apply to which states?
"QLD, NSW, VIC, SA, WA, TAS - City or Regional.
ACT, NT - Regional Council Only(NT), ACT (No regional)."
What is the constitution act and when was it made?
In 1987, the consitution act (QLD) was made to provide framework for state governance.
What defines a territory in legal terms?
Land which does not belong to any state.
Who handles law in territories?
Federal parliament has power to make laws for government of territories, territories have limited right of self government.
What comprises written law?
Constituion, Acts of Parliament and Delegated Legislation.
What comprises unwritten law?
Case Law (Common Law, and Equity).
What is written law?
Law made by Parliament in the form of acts of parliament (acts, statutes, primary legislation)
What are examples of subordinate/delegated legislation?
Acts (instrument which delegates power), Regulations(technical act detail) and By-Laws.
How is inconsistency managed in written law?
Harmonisation of 9 parliaments with Council of Australian Governments (COAG) and when states surrender lawmaking power.
What is Unwritten Law?
Case law or judge-made law which is made by judges in courts when handing down decisions.
What is the hierachy of state/territory courts?
Local/Magistrate, District/Country, Supreme, Supreme Court of Appeal - High Court
What is the hierachy of federal courts?
Federal Circuit Court of AUS, Family/Federal Court of AUS, Family Court of Australia Court of Appeal - High Court
What is the doctrine of precedent?
Doctrine/binding precedent - which binds courts to follow previous decisions of other judges in cases of similar facts.
Does the high court need to follow doctrine of precedent?
No they are not bound to follow its own decisions, but generally will for consistency unless convinced of error in previous decision.
What is ratio decendi?
Legal reasons supporting decisions which are binding.
What is obiter dicta?
Judge's expression of opinion is not binding on future cases.
How is doctrine of precedent approached from cases in other jurisdictions?
Cases may be persuasive, but not binding in other common law countries or other states.
What is common law?
Legal system using wirtten and unwritten law. Concerned with rules.
What is equity case law?
Law concerned with behaviour which includes additional remedies such as specific performance, injunctions, equitable rescission of contract.
What is the difference between criminal law and civil law?
Criminal - objective to punish persons guilty, montery fines, prison or service, breaches of work health and safety act. Objective for compensation for loss or domage due to wrongful conduct.
What is a contract?
An agreement which is enforceable, i.e. which the law will enforce.
Which contracts must be in writing?
Sale of Land, Building Contracts
What must be proven to sue in a breach of contract?
Existence of Contract, Breach of Terms, Loss or Harm
What four elements are required for an enforceable contract?
Offer, Acceptance, Consideration, Intention
What additional elements are required for an enforceable contract?
Capacity (Able), Meeting of Minds (Understanding)
What is an offer?
An indication made by one person (the offeror), to another (the offeree) of the offerer's willingness to enter into a contract on certain terms.
When will a offer lapse?
Passing of Time, Death, Failure of Condition Precedent
What is acceptance?
Communication by the offeree of their unqualified intent to be bound by the precise terms of the offer.
What is consideration?
Some act of forberance of one party, being the price for which the promise of the other is bought.
What is executory and executed?
Executory - (Future), Executed (Present) Consideration
What are the rules for consideration?
Must be legal, real value, non-past, direct enforcement, existing duty is no consideration.
What is objective testing?
Applying what a reasonable person would think in a given scenario.
What is the social/domestic arrangement assumption?
Presumption that parties did not intend to make a contract unless evidence states otherwise.
What is the commercial arrangement assumption?
Presumption that parties did intend to make a contract unless evidence states otherwise.
Are letters of intent/interest binding in an offer?
Generally not binding but depends on terms.
In the meeting of minds, how are meanings interpreted by the court?
Court is not concerned with parties interpretations, and will enforce meanings if objective can be given meaning.
What comprises the content of a contract?
Express terms, and Implied terms.
What are express terms in a contract?
Conditions and Warranties which are important and essential terms.
What are implied terms in a contract?
Terms which are inmplied based on past dealings, trade usage/customs, consumer vulnerabilties.
What terms of contract are implied by common law?
Consumer/Product assurance, duty to cooperate, duty to act in good faith, duty to provide quality services etc.
When is consideration not required?
Bank guarantees, performance bonds, confidentiality deeds, deed of indemnity etc.
When can contract terms be changed?
When both parties agree or when provisions and processes in the contract are provided.
What is the Sale of Goods Act (Qld)?
Established in 1986; business-business, business-consumer contracts for supply of goods.
What are the implied terms for goods in the Sale of the Goods act?
Seller has right to sell goods, description must match goods, merchantable quality, fit for specific purpose, sample must match goods.
What are the implied terms for goods in the Australian Consumer Law?
Established in 2010; seller has right to sell goods, description must match goods, merchantable quality, fit for specific purpose, sample must match goods.
What are the implied terms for services in the Australian Consumer Law?
Rendered with due car and skill, services will be reasonably fit, services will be supplied within reasonable time unless specified otherwise.
Can terms be excluded under Australian Consumer Law?
Under the Australian Consumer Law, what is a consumer?
Amount = >$40,000 (services or goods), personal/domestic/household consumption, vehicle/trailer on public roads.
What scope does the Australian Consumer Law have?
Implied terms in consumer contractors for supply of goods or services, misleading/desceptive conduct, unconsiconable conduct, unfair terms.
When can contracts be vitiated?
When formed under duress/mistake, entered due to misleading/deceptive/unconscionable conduct by other, where terms deemed unfair by ACL.
What is contract voidability?
Court recognises formation, falidity and binding effect of contract, but consicders one party not bound - provides window of opportunity to avoid contract.
What is a contract formed on basis of duress?
One party enters into contract as result of coercion so great it prevented exercise of free will
What is a contract formed on basis of mistake?
Where one or both parties enters into contract on basis of mistake.
Three types of mistakes at common law?
Common mistake, mutual mistake, unilateral mistake.
What is a common mistake?
Both parties make a mistake about the same thing.
What is a mutual mistake?
Parties have a differing understanding about a fundamental aspect of the contract. (Both mistaken, not the same mistake). "December/October boat"
What is a unilateral mistake?
One party enters into contract under mistaken belief as to fundamental aspect of contract. (One person mistake, bad if other party knows).
What is unconscionable conduct?
Unfair advantage on vulnerability.
What is discharge of a contract?
When a contract comes to an end.
How can a contract be discharged?
Performance, Agreeement, Frustration, Breach or Repudiation
When can a party terminate a contract in common law?
Breach of condition, breach of non-essential term which deprives innocent party, repudiation of the contract.
What is repudiation of a contract?
Repudation of a contract is when a party indicates through actions or words an unwillingness or inability to substantially perform the contract.
What damages can be claimed in breach of contract?
Expectation loss, reliance loss, personal injuries, disappointment and distress.
What tests are applied in awarding damages?
Causation (loss caused by breach), mitigation (tried to mitigate loss), remoteness
What is negligence?
Conduct (or a failure to act) that breaches a duty to take care.
What are torts?
A tort is a civil wrong committed by one person which detrimentally affects another.
What are the categories of tort?
Negligence, Tresspass, Nuisance, Defamation, Deceit.
What 3 elements must be proved for a negligence case?
Duty of care, breach, damages.
How is a duty of care proven?
Neighbor test, proximity test.
What is an inherent risk?
Risk which cannot be avoided by exercise of reasonable care.
What damages can be awarded in negligence cases?
Medical/hopsital, loss of earnings, loss of amenity, pain and suffering.
When is the defendant not liable in negligence?
Plaintiff aware of risk and danger - accepted risk.
What is trespass to land?
Direct interference with land under the possession of another person without lawful authority.
What is required to success in tort for tresspass to land?
Proof of direct interference, no damages required.
What is the remedy for tresspass to land?
Mandatory injunction to stop defendant from trespassing.
What is required to claim damages for tresspass to land?
Trespass has denied plaintiff's use (lost rent) of land OR caused physical damage to land (fixing costs).
What is the justification for trespassing?
Legal right to enter land or necessary entry to avert disaster.
What is trespass into airspace?
Direct interference above land which is necessary for owners ordinary use and enjoyment of the land. i.e. cranes, building encroachment.
What is public nuisance?
Unreasonable, unwarranted or unlawful inteference with a right common to the general public. Annoyance to the public at large.
What is public nuisane actionable in tort?
Usually crime punishable by state, when special damage over and above the damage of others has occurred.
What is private nuisance?
Unreasonable, unwarranted or unlawful inteference with a person's private use and enjoyment of his or her property.
What is required to bring action to tort of private nuisance?
Have interest in land affected, proof of defendant damage, substantial impact on plaintiffs use and enjoyment of land.
What are forms of construction site nuisance?
Noise, dust, water pollution, vibrations, obstruction of highways - usually public nuisance.
What are the 3 parts of the planning act planning system?
State and local planning instruments, development assessment system, dispute resolution processes.