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Law and Life

CHAPTER/LECTURE 1: Introducing the Law

Law and Personal Life

- Contract: legal agreement between 2 or more parties
- Have a contract with sale of goods from local supermarket, and contract with electricity and
phone company

- Consumer credit: giving of money/credit to consumer with expectation to be re paid at a later date
- Car loans
- Tort: a dangerous act that can put someone in harm
- Trespass, negligence, nuisance, passing off and defamation
- Intellectual property: intangible creation
- Listening to music on a device which is protected by intellectual property so that is isn't copied
- Litigation: result of someone suing someone else
- Prosecution: establishing the guilt of a person by going to court
Law and Business Activities
Paying income tax on business earnings to federal government
Payroll tax to state government
Pay rates to local authority
Licensing laws, advertising laws and workplace health and safety

-

Law in the Media
Someone being jailed
Arrests and warrants on houses and businesses
Case law: laws made by courts in relation to doctrine of precedent
News and current affairs

-

Law in Popular Culture

- Boston Legal, Law and Order, SVU
- Can create fantasy of what law is like
The Nature of the Law

DeMining Law
- Law: set of rules made by state
- Are enforceable by prosecution (criminal) or litigation (civil)
- Business law: rules regulating business
- “Law”: particular legal rule
- “The law”: legal system
A Set of Rules

- A rule is expectation of behaviour
- Tells people how they should behave
Made By The State

- Legal rule made by state
Enforceable by Prosecution or Litigation

- Legal rules backed by consequences
- Criminal law: facilitate prosecution of those who have committed a crime
- Civil law: facilitate disputes between members of community
The Purpose of Law
Resolves disputes
Sustained social order
Reinforces the communities values
Aids the disadvantaged
Keeps economy stable
Prevents misuse of power
- Rule of law: government authority must be used in accordance with laws appropriate to citizens
- Doctrine of Separation powers: executive, legislature and judiciary should act as one

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Categories of Law
Substantive and Procedural
- Difference between law and how it works
- Substantive: sets out right/obligations of individual/state
- Procedural: regulates legal process

Constitutional: between various
arms of government and its citizens,
grants human rights and liberty
Administrative: admin government
activities such as local governments
Public Law
Criminal: develops criminal offence penalties

Taxation: regulating admin and collecting tax
Law
Tort: solution for harmed persons
Contract: agreements and promises
Private Law

Competition (businesses don’t misuse
marketing power) and consumer (protects
consumers from unfair praises by businesses)
Property: personal, land, intellectual
and contract law regulation
Commercial: agency, franchise, insurance and bankruptcy
Employment: relationship between employers
and employees and business practises
Company and partnership: sustaining
corporations and partnerships

Domestic/International Law

- Domestic: law for a person within a certain jurisdiction
- Public international: rules between states - customs and treaties
- Private international: determines which state laws should be applied if someone is in trouble in
another country

- Three questions have to be asked before applying the laws:
- Does course have jurisdiction so that it can hear the case?
- Which laws apply?
- Is court most convenient way to solve dispute?
- Aus court will only have jurisdiction to hear international dispute if:
- Defendant it present when statement of claim is presented
- Defendant submits to that courts jurisdiction
- Court Minds someone to serve statement on defendant who is not in that country’s jurisdiction

- Which laws are applied depends on the jurisdictions
- Aus courts can refuse to hear a case or send it somewhere else
The Changing Law
Political Change
- Law changes because of government changes
- Political parties have different policies
Solving Problems

- Some laws have loopholes and lawmakers can Mix these loopholes therefore changing the law
Changing Values

- Social and moral values change with time, so the laws must change to keep up with them
Lobby Groups

- Lobby groups place pressure on government to change or introduce laws
- Employers, students, unions etc
...
)
Different forms of government include:
Monarchy
- Head of state is King or Queen
- Absolute monarchy - head of state exercises executive power directly - Brunei, Saudi Arabia
- Constitutional monarchy - head of state holds little to no power - New Zealand, Aus and UK
- Commonwealth - where head of state is of England
- Presidential Systems
- Full presidential systems - president is both head of state and head of executive government - USA
and Indonesia
- Semi- presidential - president only head of state and has some executive power which is also
exercised by ministerial council headed by prime minister
- Parliamentary Republics
- Head of state is president
- Executive power exercised only my ministerial council
- Italy, Singapore and East Timor
- Theocracies
- Head of state determined by religion
- Vatican City and Iran
- One Party States
- Power exercised only by one party
- China, North Korea and Vietnam

-

Federation
Various state governments
Federal and state are partners
Residual powers remain with State governments
Contrasted with unitary system (single government responsible for the whole system)
New Zealand is unitary

-

Separation of Powers

- Doctrine of separation of powers
- Distinction between making, administering and interpreting law
- Legislative power is to make law
- Exercised by legislature
- Most parliaments bicameral - two houses
- Executive power is to administer law
- Exercised by Prime Minister, Premier and other ministers

- Proposes most of legislation that is passed and manages other relationships between states
- Judicial power to interpret
- Exercised by system of courts
- Doctrine of precedent - principle of when deciding a question of law the court must do it with
decisions made earlier from higher courts

- Important to see difference between separation of powers (separation of legislature, executive and
judicial) and division of powers (division of law making powers between Federal and State)

Responsible Government

- Doctrine of responsible government: executive should be answerable to legislature
- Ministers who make up various state and Federal are members of speciMic parliament and should
-

answer to that parliament
Executive government answerable to citizens who elected them
Ministers must report to parliament about their decisions and about department performance
Ministers hold position while they have conMidence of lower house
Head of state must act on minister advice

The History of the System
Law and First Australians
- Before British settled in 1700’s Indigenous Australians were here already
- Already had a legal system
- British said they were uncivilised therefore did not need to be recognised
British Settlement
First governor was Arthur Phillip
First settlement in 1788 in NSW
At the time Australia considered “terra nullius” - no mans land
Indigenous Australians considered not inhabiting because they did not have system of private
property or building structures on the land
- Deemed to have settled by Britain not conquered
- British brought with them doctrine of reception - settlers of new territory to bring their laws with
them
- 1992 - Mabo vs Queensland (No 2) - High Court of Australia Minally rejected that Aust was terra nulls
at time of British settlement

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Colonial Government

- Colonies established in Aus controlled directly by colonial government
- Up to governor to decide which British laws to be applied
Federation

- By 1800’s 6 self governing colonies existed
- UniMication of these 6 colonies included:
- Need to defend during war time
- Trade disputes as a result of custom barriers
- Consistent immigration policy
- Commonwealth of Australia existed on 1st Jan 1901
- Each colony (state) gave up powers to Federal government
- Retained individual identities - today free from British interference
Local Government

- Established to take control of each are of each state
- Have legislature and executive
- Responsibilities limited to community facilities and local services
Political Parties
Liberal Party
National Party
Greens
Australian Labour Party

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Conclusion

- Over centuries there has been a change in many laws
- Red tape: over regulation in businesses - they struggle to cope with the amount of laws there are
- Too much litigation due to these reasons:
- Class actions: single legal action brought on defendant on behalf of heaps of people
- Conditional costs agreements: Client pays the lawyer the costs only if the outcome is in their
favour

- Culture of litigation: Threaten or commence legal action in order to solve problems

LECTURE/CHAPTER 2 AND CHAPTER 3: Understanding the Australian Legal
System and Exercising Legal Skills

Chapter 2: Understanding the Australian Legal System
The Australian Constitution

Structure of the Constitution
Came into force on January 1st 1901
British parliament contained in Section 9 but don’t have the power to amend the constitution
8 chapters and 128 sections
Chapter IV: Finance and Trade
Chapter V: The States
- Section 109 important in resolving conMlicts between Federal and States
- Chapter I, II and III very important

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Constitutional Conventions

- Unwritten rules dictate how constitution should be interpreted/practised
- Scope and detail considerable debate
- Example: leader of political party with most votes in lower house becomes Prime Minister
Federal and State Relations

- Exclusive powers: powers exercised only by Federal Parliament
- Currency
- Customs
- Defence
- Territory
- Residual powers: power exercised only by State Parliaments
- Crime
- Property
- Education
- Health
- Concurrent powers: legislative powers exercised by both Federal and State parliaments
- Marriage
- Banking
- External affairs
- Taxation
- If Federal has not legislate in regards to any matters in s51 then still with the State
- If State and Federal both make law in relation to the same matter from s51 then s109 states it’s
invalid

Limitations

- Upon the Commonwealth
- Cannot favour States with tax
- Cannot restrict free trade between states
- Must try person who committed offence under Commonwealth law in state offence occurred
- Property cannot be acquired without just compensation
- Cannot establish laws prohibiting religion
- In regards to the States
- Cannot excise duties
- Cannot levy customs
- No military forces developed
Regulating the Territories

- Eight other territories: Christmas Island, Ashmore and Cartier Islands, Coral Sea Islands, Cocos

Islands, Norfolk Islands, Jervis Bay Territory, Australian Antarctic Territory and Territory of Heard
and McDonald Island
- Federal Parliament can make laws on any subjects in regards to these territories
Changing the Constitution

- Proposed amendment must be passed by absolute majority and by put through by referendum

- Referendum: vote put to Australian people, must be passed by majority of voters in majority of states
(MUST HAVE DOUBLE MAJORITY)

- 44 amendments have been put forward, only 8 successful
Legislature

- Power to make law
- Parliament is sovereign law maker
- Make law through court and parliament
Parliamentary Nature
History of Parliament
- 1066 present legal system in British commenced
- Knights and citizens used to meet separately
- Bicameral: upper and lower house in parliament
Parliamentary Structure
British

Federal

State

Territory

Crown

Queen

Governor General

Governor

Administrator

Upper House

House of Lords

Senate

Legislative Council

-

Lower House

House of Commons

House of Reps
...
have 3 years appointed
Political party with majority of members forms executive government
Each state has equal representation in Senate
12 senators from each state and 2 from each territory
Appointed for 6 years but half of the Senate is re-elected each 3 years
Senate has the power to veto (reject a proposal)

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State Parliaments

- Lower House = Legislative Assembly
- Upper House = Legislative Council
Crown Representative

- Bill does not become law unless it has assent from Crown representative
Parliament in Operation
How Laws Are Made
Step 1: Proposal
- Introduced by a minister
- Pressure upon executive government from various sources
- Government policy
- Courts
- Lobby groups
- Media
- Law reform body
- Public servants
Step 2: Bill Drafting

- For a law to be discussed it must be in form of a bill
- Prepared by OfMice of Parliamentary Counsel
Step 3: Lower House

- Bills introduced to Lower House

- To be passed by Lower House must be passed through 3 stages
- First reading: formal reading of the bill and everyone has copy
- Second reading: outlines content and purpose of bills and bill will be debated
- Committee stage: bill may be sent to Committee of the Whole for detailed examination of clauses
- Third stage: restricted debate and after 3rd reading bill has completed journey
Step 4: Upper House

- Once passed through Lower House goes to Upper House
- Goes through same 3 stages as before
Step 5: Assent

- Last step then bill becomes law
Step 6: Commencement

- Act can commence from date speciMied in Act
- Date can be Mixed by proclamation
- If no date announced in Act state acts start from date of receiving royal assent and federal acts start
from 28 days after royal assent

Resolving Deadlocks

- Section 57 says that if Upper House rejects bill from Lower House then the governor general can

dissolve both houses (double dissolution - members of parliament are dismissed and election is
held)
- If new parliament is appointed Governor General can convene join sitting of both Upper and Lower
houses
Types of Legislation
Original acts: laws as of the original one
Amendment acts: changed act
Repealing acts: getting rid of act
Consolidating/reporting acts: legislation in different places because they deal with different aspects
of one law
- Reviving acts: reviving an act

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The Executive

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Power to administer law
Maintain order and security
Power invested in the Queen and exercised by Governor General
Governor general acts on advice of ministers
Stated executive power vested in Governor
Territory power vested in Administrator

Governor - General and State Governors

- Formal powers: powers granted by relevant legislation
- Reserve powers: Crown’s powers exercised from advice of executive government
- Appoint Prime Minister
- Dismiss Prime Minister
Executive Council and the Cabinet

- Each minister responsible for a certain portfolio/department
- Senior and Junior ministers
- Shadow cabinet scrutinises and challenges executive government
Challenging the Executive

- If a person is not happy with decision made by government department they can go to various
places

- Ombudsman: public ofMicial who investigates complaints
- Freedom of information: access documents and information online
- Administration Appeals Tribunal: hears appeals from decisions from government

- Judicial review: produces prerogative writ (order from court telling admin ofMicer or tribunal to
refrain from acting certain way

Delegated Legislation

- Pass legislation setting out principles of certain regulatory scheme
- Legislation made by a body and to who the power is delegated to
Judiciary

-

Interpret the law
Apply the law in resolutive states
Exercised by courts
Case law: made by courts in relation to doctrine of precedent

Australian Court System

- Each state and territory has own court system
- Hierarchy of court advantage for a number of reasons:
- Courts linked by avenue of appeals - if you are dissatisMied you can go to higher court
- Enables courts to specialise in certain trial types
- Facilitates doctrine of precedent
- Each court has own jurisdiction
Jurisdiction
Original Jurisdiction
- Resolve dispute for the Mirst time
Appellate Jurisdiction

- Jurisdiction from courts to hear appeals from lower court hierarchy
Criminal Jurisdiction

- Trial of prosecution of offender accused of crime
Civil Jurisdiction

- One person suing another
- Scope of court authority
Federal Court System
High Court
(Appellate Jurisdiction)
High Court
(Original Jurisdiction)
Full court of the Federal Court of
Australia
(Appellate Jurisdiction)

Full court of the Family Court of
Australia
(Appellate Jurisdiction)

Federal Court of Australia
(Original Jurisdiction)
Federal Magistrates Court

Family Court of Australia
(Original Jurisdiction)

State/Territory Court Hierarchy
High Court
(Appellate Jurisdiction)
Court of Appeal/Full Court of the
Supreme Court
(Appellate Jurisdiction)
Supreme Court
(Original Jurisdiction)
District/County Court
(Appellate Jurisdiction)
District/County Court
(Original Jurisdiction)
Magistrate/Local Court
(Original Jurisdiction)

Court Process

- Australian system of dispute resolution from adversarial system (each party hears case before a
-

-

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judge who then decides outcome)
Rules of evidence and procedure
Judge observes and checks whether these rules are applied fairly
Adversarial contrasted with inquisitorial system (judge plays truth seeking role, code is law)
Starting point
- Civil: decision by plaintiff to litigate
- Criminal: when accused is arrested
Commencement proceedings
- Civil: starts with statement of claim which sets out plaintiff’s claim, defendant can also have a
defence statement
- Criminal: accused person is charged with offences
Pre-trial
- Each party knows about what the other is doing and can ask questions
- Given copies of relevant documents
- Once the parties have all the information they need they present a certiMicate of readiness which
states that they are ready to move on with the trial
The trial
- Opening by lawyer from plaintiff
- Calling of plaintiff’s Mirst witness
- Questioning/examining of witness
- Questioning of defendants witness
- Opening statement done by defendant lawyer
- Questioning of plaintiffs other witnesses
- Closing address by lawyers
- Summary by judge to jury
- Judgement
- Plaintiff must have burden of proof (sufMicient evidence) to bring successful action against
defendant
- Must have standard of proof (amount of proof required to discharge burden of proof)
Evidence
- Testimony: verbal statement of witness
- Real evidence: in form of objects to examine
- Direct evidence: eyewitness account
- Circumstantial evidence: not in direct fact of issue but the court may use it

- Decision
- If before jury judge summarises
- If no jury judge makes decision
- If plaintiff is successful can get damages or an injunction etc
...


- Appeal
- If party is not satisMied can appeal
- Heard by more than one judge
Doctrine of Precedent

- Says only legislature makes law
- Stare decisis: when deciding law question court must stand by decisions made previously through
higher courts - provides consistency and predictability when deciding

Precedent

- Binding precedent
- Earlier judicial decision that judge has to follow
- Persuasive precedent
- Earlier decision that a judge does not have to follow but an if they want to
- Depends on court status and case similarity
- Distinguishing
- Emphasising difference between facts from current case and earlier case in order to justify why
they haven’t followed the precedent

- Overruling/rejecting
- Court decision to not follow precedent
- Can be due to disagreement with court of earlier precedent
Alternative Dispute Resolution

- Negotiation, mediation, conciliation and arbitration
- ADR is cheaper and faster than court, it’s less stressful and more private and less destructive to
business conMlict

Finding the Law

CHAPTER 3: Exercising Legal Skills

Legal Research
Can Mind multiple sources of legal information
Primary legal materials: direct sources of legislation
Case law: made by courts in compliance with the doctrine of precedent
Legislation: made by parliament
Secondary legal materials: don’t comprise the law itself but can expand on primary materials

-

Primary Legal Materials
Legislation and case law
Check whether the legislation has been amended or repealed
Can get the hard copy of legislation
Look at the library or online or in a court library
To locate a case refer to citation
- Legislation
- Donoghue v Stevenson [1932] AC 562
- Parties, v pronounced and, date, AC means it is an English case and page number
- Case law
- Competition and Consumer Act 2010 (Cth)
- Short title, date, jurisdiction (this one is from federal)

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Secondary Legal Materials

- Not binding law but can be persuasive
- Includes law textbooks, journal articles, dictionaries and encyclopaedias
Reading the Law

Legislation
Number of act
Title and purpose
Assent date
Enacting words
Commencement
Sections, subsections and paragraphs
Parts and divisions
Marginal notes
Section of deMinitions Schedules

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Case Reports

- Ratio decedendi: part of jude decision which lays out principle that the decision is based on and it is
binding

- Obiter dicta: part of decision which Minal decision is based on but it’s not the legal principle
- Can be evidence and other legal principles
Reading the Law
Legal long and difMicult to understand
Complex and repetitive
Some jurisdictions require documents to all be written in plain language so it is easier to understand
Reasons for the text to be long and detailed:
- So judges don’t miss any points and can understand everything easily
- Lawyers don’t have to write more documents so they detail the document so that it can cover
wide rage of scenarios
- Latin and French terms
- Some English terms have different meanings from their every day use
Statutory Interpretation
- Court interpretation to see whether the legislation applies to the case
- SpeciMic rules and regulations in regards to statutory interpretation
- Literal approach
- When reading statute court should interpret it literally reading word for word as it is
- Golden rule

-

- If the literal reading results in a problematic or absurd result then alter the literal text so that is
not the result next time

- Contextual approach
- Meaning of a particular word should be relevant to the context so there’s no confusion
- Interpret the word in relation to the other words used around it in the statute
- Class rule: general word that follows speciMic word should be interpreted according to the

general words
Statutory provision should be interpreted in the context of Act as a whole
Don’t have to interpret word/phrase in one way as you would on other legislation
When interpreting statute a previous one may come into affect
Mischief rule: in event of ambiguity court should consider the problem as mischief
- Purposive approach
- If text does not reveal meaning of statute then refer to authors purpose
- Statue should be interpreted to promote purpose
- Some say it should only be used to solve uncertainties
- To establish the purpose look at the objective clause in the act
- If clause not speciMically set out look at extrinsic materials to Mind it such as the minsters
second reading to discover what the parliament wants to achieve by passing the act

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Common Law Presumptions

- When interpreting there are assumptions:
- Words have current meaning
- Words have technical meaning
- Words have consistent meanings
- No surplusage
- Provision constitutional
- Provision consistent with international law
- Provision not extra territorial
- Not retrospective
- Not binding on Crown
- Must not contradict common law principles or infringe established common law rights
Thinking Like A Lawyer

- Legal reasoning: thinking used by lawyers to solve problems
Deductive and Inductive Reasoning

- Inductive reasoning: using experience to infer general rule existence or to predict a new one
- Example: if you drink same coffee 5 times and you don’t like the taste you would assume you
wouldn’t like the 6th cup

- Deductive reasoning: using one or more principles to predict experience
- Example: All houses built between 1910 and 1956 have asbestos and your house was built in
1948 therefore your house contains asbestos

How to Solve a Legal Problem
1
...
Identify legal rules relevant
3
...
Reach conclusion

Writing Like a Lawyer

-

Must be formal
Tone must be respectful and polite
Must be clear
Group together related material

Letter Drafting

- Subject line: sets out subject of letter
- Background: Mirst paragraph sets out background to problem
- Problem: second paragraph sets out details for problem

- Solution: third paragraph sets out solution to problem
- Warning: fourth paragraph warns if solution is unsuccessful
- Closing: closing line - prompt
Contract Drafting
Contract is legally forceable agreement
Good idea to have in writing for reference and evidence if something goes wrong in contract
Step 1: prepare outline
Step 2: draft the contract
Step 3: test/revise contract
Step 4: proofread contract
Step 5: settle contract
Step 6: sign the contract

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Causing Harm

CHAPTER 4: Causing Harm

Criminal Liability
Harmful act is crime = criminal liability
Crime: harmful act that will lead to consequences seeking to have the offender punished
Each jurisdiction has own criminal legislation
ACT, NSW, SA and VIC criminal law includes criminal legislation and principles from common law
QLD, WA, TAS and NT have coded law by parliaments (legislation that overrides common law)
Provisions contained within different acts

-

Tortious Liability

- Act that causes harm to another
- Concerned with remedy to victim
Tort

Criminal

Objective

Remedy

Punishment

Action commenced by

Plaintiff

Crown

Standard of proof

Balance of probability

Beyond reasonable doubt

Outcome

Win or lose

Guilty/not guilty

Contractual Liability

- If during contract person engages in harmful activity, that activity gives to contractual liability
- Only arises if there is contact between plaints and defendant
Statutory Liability

- Statutes impose legal liability
- Harmful act may contravene statutes
Vicarious Liability
Liability for conduct of other person
Example: employer being responsible for employees action whilst working
For negligence of employee
Only if employees actions sufMiciently connected to employer and business
Independent contractor: person contracted to provide services; not employee of business

-

Deliberately Causing Harm to Person/Property

Criminal Liability
Criminal Offences
- Murder, manslaughter, sexual offences, kidnapping and assault
- Robbing, stealing, corporate crime and forging
- Sedition and treason
- Destroying evidence and perjury
- Can be classiMied as indictable or summary offences
- Indictable offence: serious criminal offence (murder)
- First held committal proceeding (determines whether or not there is enough evidence for a
criminal trial)
- Summary offence: less serious (common assault)
- Held before magistrate or lower court
Criminal Guilt
Can be found guilty less actus reus and mens rea
Actus reus: physical act of committing crime - guilty acts
Mens rea: guilty mind - intention to commit the crime
Strict/absolute liability: offence created by legislation which might not need mens rea for person to
be found guilty
- Example: driving over speed limit

-

Criminal Defence
Crown must prove beyond reasonable doubt
Crown has burden of proof
Self defence: must be reasonable and excessive
Insanity: unable to form intention due to mental illness
Diminished responsibility: had impaired understanding of right/wrong
Duress: overpowered by compulsion or will of another
Automatism: at time of crime committed person had no conscious control of actions
Infancy: child between 7 - 14 years incapable of committing crime
Necessity: if criminal act was necessary

-

Tort of Trespass

- Interfere directly with person/property of plaintiff
- 3 trespass principles
- Land
- Interferes with land without consent
- Does not have to be physical contact with land
- Goods
- Owner must have rightful possession of good
- Conversion: defendant wrongfully takes goods of another and intends on keeping them
- Detinue: when defendant also has rightful possession of good and plaintiff asks for it back but
defendant doesn’t give it back

- Person
- Interfere on body of plaintiff
- Battery
- Tort when person unlawfully applies force to another
- Assault
- Person threatens another with physical harm
- False imprisonment
- Person deprives another of their movement

- Trespass actionable to per se (no need to prove loss/damage)
Defences
Accident
Consent
Necessity
Self defence
Defence of property

-

Tort of Nuisance

- Interference of plaintiffs use of public land
- Private nuisance
- Interfere with plaintiffs use/enjoyment of private land
- Destruction of vegetation via fumes
- Noise by defendant
- Only interference when it becomes unreasonable
- Public nuisance
- Interference of use/enjoyment of public land
- Park or street
- If someone leaves furniture on street in front of their cafe
Defences

- Consent by plaintiff
- Statutory authority
- Legislation that permits that attitude
- Contributory negligence
- Harm plaintiff suffered was partially due to their own carelessness

Tort of Defamation

- Defamation: when one person publishes stuff about another person to a 3rd party which damages
that Mirst persons reputation

- Libel: written form of defamation
- Slander: spoken form of defamation
Elements of Defamation

- Plaintiff must establish 3 things before brining action
- Statement about plaintiff was defamatory
- People think less of plaintiff
- People shun the plaintiff
- Ridicule plaintiff
- Plaintiff doesn’t belong to society
- Statement clearly identiMied plaintiff
- Statement should reasonably be able to be used to identify plaintiff
- If mass of persons have had statement made about them one person from that group cannot
sue

- Published statement
- Communicated to someone other than plaintiff
Defences
JustiMication: maybe statement is partially true
Contextual truth: some meanings are true and did not do further harm
Absolute privilege: statement made during parliament proceedings
Publication of documents: contained in public document
Fair reporting matters public concern: contained in fair reports in regards to public concerns
QualiMied privilege: person had interest or duty to make the statement (job reference saying bad
things)
- Honest opinion
- Innocent dissemination: published statement in mass capacity and did not know the statement was
defamatory
- Triviality: plaintiff was unlikely to suffer harm

-

Carelessly Causing Harm to Person/Property
Tort of Negligence

- Negligence: one person fails to exercise reasonable care
- Causes harm to person
- Combination of case law and statutory rules
- Public liability insurance: insurance against risk of sue by third party who has suffered
- For legal action to succeed plaintiff must establish 3 things on balance of probabilities:
- Duty of care
- Onus on plaintiff to establish
- Manufacturers owe duty of care to customers
- Doctors owe duty of care to patients
- If relationship does not fall between established duties then plaintiff has to show that it was

forceable that defendant act could cause harm to someone in same position AND salient
features of case are consistent with duty of care existence
- Donoghue v Stevenson (1932) AC 562
- Sullivan v Moody (2001) 207 CLR 562
- Defendant breached duty of care
- Must identify duty breached
- Reasonable person test: no duty of care breached unless person fails to do what reasonable
person would have done
- Risk was foreseeable = breach of duty of care
- If risk insigniMicant duty of care not breached
- Risk of injury so small that reasonable person wouldn’t have done anything = duty of care not
breached
- Bolton v Stone [1951] AC 850
- Taking precautions: Latimer v AEC Ltd [1953] AC 643
- Court can decide defendant can owe a lower duty of care due to inexperience or minor status

- Can avoid liability by delegating responsibility to another person
- Breach caused harm to plaintiff
- Court must be satisMied with factual causation and scope of liability
- Factual causation
- Defendant only responsible for harm caused directly by their carelessness
- Yates v Jones [1990] Aust Torts Reports 81 - 009
- Scope of liability
- Court must decide the scope of liability for defendant
- Key consideration is whether the harm was foreseeable
- If harm suffered by plaintiff was too remote then defendant wasn’t liable
- Rowe v McCartney [1976] 2 NSWLR 72
- Not extent of harm
- Eggshell skull rule: if plaintiff suffers greater than the harm itself due to pre existing
vulnerability then the defendant is liable

Defences

- Voluntary risk assumption
- If plaintiff assumed risk voluntarily defendant is not liable
- Plaintiff knows the risk
- Agar v Hyde (2000) 201 CLR 552
- Contributory negligence
- If plaintiff contributed to their own harm then liability will be split between both defendant and
plaintiff

- Other defences/immunities
- Barristers
- Volunteers
- Compliance's with standard practise
- Apology
Applications

- Occupier Liability
- Occupier of premises is person who owns and operates it
- Just because person is occupier does not mean they are liable
- Must have done something careless
- Public authority liability
- Public authority owes liability to people in public place where danger is hidden
- If danger isn’t hidden then public authority assumes people take care of their own safety
- Sometimes local authorities lack funding to address all of the problems
- Court must take into account following principles when deciding there has been a breach:
- Functions limited by resources Minancially
- General allocation is not challengeable
- Functions exercised by authority decided by broad activity range
- Authority may rely on evidence and general procedures in relation to the matter at hand
- Bailment
- Person has temporary possession of another
- Leaving clothes at dry cleaner
- Borrowing tools from neighbour
- Person in possession owes duty of care to person they borrowed from
Deliberately Causing Financial Harm

Criminal Liability
White Collar Crime
- Committed by person in business or government position who does crib through their advantage of
the position they hold
- DifMicult to detect
- Theft
- Embezzlement
- When a person uses money entrusted to the for their own purposes
- Bribery

- Insider trading
- Industrial espionage
- Person gets information about competitor without permission
- Money laundering
- Turning criminal activity proceeds into funds/property
Cyber Crime

- Computer is used as tool to commit offence
- Criminal Code Act 1995 (Cth) gives for 3 serious computer offences
- Access, modifying and impairing of computer with the intention of committing an offence
- ModiMication of data with no permission
- Impairment of electronic communications
- Also provides for other computer offences
- Unauthorised data access
- Unauthorised data impairment where data is held on a computer disk
- Producing/supplying data with the intention of committing an offence
- Possession of data with intention of committing offence
Other Penalty Provisions

- Competition and Consumer Act 2010 (Cth)
- Substantial Mines for people who breach consumer protection provisions
- Privacy Act 1988 (Cth)
- Fines for people who misuse individuals personal information
- Corporations Act 2001 (Cth)
- Fines/prison terms if person breaches company duties
- Bankruptcy Act 1996 (Cth)
- Prison penalty if bankrupt person attempts to defraud creditors
Tort of Deceit
Misrepresentation: false statement about a person by another person in order to enter a contract
If misrepresentation is deliberate person has committed tort of deceit
If person shares opinion that can be interpreted as deceit then it isn’t because it is an opinion
Bisset v Wilkinson [1927] AC 177

-

Tort of Passing Off

- When person connects themselves/product as having something to do with another business
- PaciMic Dunlop Ltd v Hogan (1989) 23 FCR 553
Tort of Intimidation

- Person threatens to do unlawful act that forces another person to do something that they want
Tort of Interference with Contractual Relations

- Person induces another to break contract with a third party
Carelessly Causing Financial Harm

- Pure economic loss: loss suffered as a result of plaintiff loosing
- Situations below outline where plaintiff can recover some sort of compensation for pure economic
loss that they have suffered as result of carelessness by defendant

Harm to Person/Property of Third Party

- Perre v Apand Pty Ltd
- Courts have slowly extended tort law to allow for compensation
Defective Products

- If product manufactured wrong and leads to pure economic loss
- Junior Books Ltd v Vetch Co Ltd [1983] 1 AC 520
Misstatement of Negligence

- Giving careless advice that leads to economic loss
- Direct relevance to accountants, Minancial advisors etc
...

- Up to court to calculate
- Can include liquidated damages clause in contract
Direct/Indirect Losses

- Direct: natural Mlowing loss that plaintiff incurs in accordance to course of events
- General damages paid for this
- Koufus v C Czarnikow Ltd; The Heron 11 [1969] 1 AC 530
- Indirect: not caused directly by breach of contract/ not expected to be result of breach
- Special damages paid for this
- Hadley v Baxendale (1854) 9 Ex 341 R 145
Mitigation

- Plaintiff obliged to take all reasonable steps to reduce loss
- Brace v Calder [1895]
Equitable Remedies

- When plaintiff demonstrates to court that damages are not satisfactory court can proMile equitable
remedy

- Not be granted if:
- Award of damages adequate
- Delayed action by plaintiff
- Unfair behaviour by plaintiff

SpeciMic Performance
Order directing defendant to fulMil obligations set out in contract
Court will not order the performance if the contractual obligation was one of personal service
Court will not order speciMic performance is goods are available from other suppliers
Dougan v Ley (1946) 71 CLR 142

-

Injunction

- Court order forbidding someone engaging in particular action which will cause breach
- Different from speciMic performance as it is not requiring someone to perform something it is asking
of opposite

- Buckerman v Hawthorn Football Club Ltd [1988] VR 39
Statutory Remedies
Seller Remedies
- Seller entitled to compensation if buyer doesn’t accept goods delivery
- If buyer has not paid for goods seller still has goods and can sell them to other people
- Seller can sue for price of goods if buyer does not pay for goods
Buyer Remedies
Buyer can sue if seller has delivered goods
Buyer can sue if goods delivered are not how they are meant to be
Buyer can only sue for damages is breached term if warranty
Buyer can reject goods and end contract if condition was breached

-

End of Contract

Agreement
Both parties agree to end contract
Both parties can mutually agree to release each other from further obligations
Party who has fully performed obligations can release other party from contract through deed
Mutually free to replace existing agreement with another
Contract may have condition precedent (agreement not enforceable until certain something
happens)
- May have condition subsequent (agreement can stop if certain something happens)

-

Frustration
Occurs when something happens that is not fault of either party
Contract will come to end if supervening event occurs
Contract did not provide for supervening event
Would be unjust to continue
Taylor v Caldwell (1863) 3 B & S 826; 122 ER 309
Obligations already performed can not be sought back in remedies or recovered

-

CHAPTER 8 - Dealing With Consumers and Competitors

Protecting Consumers

-

Contract law offers little assistance to consumers
17th and 18th Century judges let negotiations occur between business and consumer
Common law helps with remedies for party who suffers in this case consumer
Overriding principle is caveat emptor: let the buyer be aware
Standard form of contract: document with pre-printed terms that are not negotiated
Business seeks proMit from consumer ignorance
Numerous statutes seek to offset inequality between consumers and businesses:
- Additional terms in contract
- Prohibiting business conduct of certain types
- Regulate transactions with consumers
- Fake fraud alerts, weight loss scams

Dealing With Consumers

Consumer Protection Regulation
Rules found in Australian Consumer Law
Prior to ACL consumer transitions regulated by different bodies
ACL enforced by ear Aus jurisdiction
Applied to all business structures
Australian Securities and Investment Commissions Act 2001 (Cth) regulates Minancial products and
services to consumers

-

Regulators
ACL administrated by Australian Competition and Consumer Commission (ACCC)
Seeks to promote fair competition and trade
Regulates services for national infrastructure
Memorandum of Understanding facilitates ACL and ASIC

-

Meaning of Consumer

- DeMined in ACL as:
- Person to acquire goods for personal consumption (buying pre-packaged food and eating it at
home)

- Sub-section 1 does not apply if person acquires goods to re sell or transforming them

- Example: If Johnny buys cutlery for his restaurant he is still consumer as he is using them for
household/domestic/personal consumption because he is not re-supplying

General Protections
Misleading/Deceptive Conduct
- Section 18 of ACL says that a person must not commence trade and conduct in a misleading way
- Person who suffers loss of this type of conduct can seek remedies offered by ACL
- Person can also lodge complaint with ACCC which can take action on behalf of consumer
- Does not matter if intention of business was to mislead or whether it believed it was acting honestly,
if conduct was misleading then prohibition contravened
- Few defences set in ACL
- Use of disclaimer liability cannot be avoided
- Standard of “unsuspecting modest member of the community” applies
- ACCC v Telstra Corporation Limited (2007) 244 ALR 470
- Remedies provided by ACL is more than what common law provides for misrepresentation
- Section can also be relied upon by public and businesses
- Gillette Australia Pty Ltd v Energiser Australia Pty Ltd (2002) 193 ALR 629
- Section 18 from ACL can also be used with tort of negligence, passing off, defamation or breach of
contract
- Business can contravene with S18
Requirement 1: Business engaged in Conduct
- Engages in conduct if business makes statement, or promise or performs action
- Can also refuse any of these actions
- Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 2) (1989) 40 FCR 76
- Intention is irrelevant

Requirement 2: Conduct in trade or commerce

- Trade/commerce in ACL deMined as:
- Within Aus trade/commerce
- Between Aus and outside of Aus including any professional business activity
- Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
- Statements made in education/politics are not trade or commerce
Requirement 3: Misleading or deceptive conduct

- Court use an objective test to decide if conduct is misleading
- First: pick section of public which the question of conduce falls to be tested
- Second: once section established the issue is going to be considered by reference with everyone
- ACL does not deMine exactly what misleading conduct is
- Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177
- Only need to show small % of target audience is going to be affected
- ACCC v powerballwin
...
au Pty Ltd [2010] FCA 378
- True statement can also be misleading: “organic”
- Henderson v Pioneer Homes Pty Ltd (No 2) (1980) ALR 597
- Statement of opinion can be misleading if:
- No reasonable grounds to make opinion
- Person making opinion does so without regards to future matter
Unconscionable Conduct

- Take advantage of another persons disadvantage
- Prohibited by ACL in Part 2-2
- General unconscionable conduct
- What ever the court has deMined in case law as unconscionable is not allowed under ACL
- Person who isn’t listed as public company receiving/selling goods/services in unconscionable
conduct

- Protection limited to consumers/small businesses

- ACL has no deMinition of unconscionable
- List of matters under consideration when court decided that a business has contravened with
Section 21:

- Bargaining positions of customer and supplier strength
- Customer required to comply with conditions that resulted in conduct because those conditions
were not reasonably necessary

- Whether customer could understand documents in relation to supply of goods/services
- If there was unfair tactics used on customer
Contract Terms That Are Unfair

- Section 23 of ACL says:
- Contract is void if it is unfair and if it is standard contract form, and if the contract binds the
parties if it can operate without the unfairness

Requirement 1: Contract is consumer contract

- Consumer contract is one for goods supply and services and also land interest to someone who is
going to use that for personal or domestic use

Requirement 2: Contract is Standard Form

- Contract which is pre-printed terms not negotiated
- “Take it or leave it”
- ACL says court must take into account these things before determining whether a contract is

standard:
If one party has all of the bargaining power
If contract was made by one party before any transaction discussions between the other party
If other party needed to accept or reject the terms of the contract in which it was presented
If the other party was given an opportunity to negotiate terms

-

Requirement 3: Unfair term

- ACL section 24 3 requirements are satisMied when term is unfair:
- SigniMicant imbalance in parties obligations

-

- Onus of business to protect their legitimate interests
- Causes consumer detriment

Term is transparent if it is in plain language and readily available
Transparent term taken into account when court decided if a consumer contract is unfair
Director of Consumer Affairs Victoria v AAPT Limited [2006] VCAT 1493
Term is unfair if it says that the party cannot terminate the contract
Term that places burden on consumer is unfair
Term txt permits business to change goods/service characteristics is unfair

Exemption

- ACL section 26 says unfair provisions don’t apply to:
- Term that deMines subject of contract
- Term that says upfront price
- Term that is required
SpeciMic Protections

- Chapter 3 in ACL prohibits practises and claims
- May be criminal penalties
Unfair Practises

- Making false representations of goods/services
- Must not make false representations about quality, value standard etc
...
3 million sales were conducted in door to door operation 2012
- 1 million door to door sales relatable to energy services
- Aus households door knocked on average 8 times a year
- Door to door sales in closely monitored
- Dealer must inform the consumer straight away about deals purpose ACL s74
- If agreement formed the consumer must be given a form of agreement s78
- Dealer must leave immediately if asked to leave and not return for 30 days
- Not visit on Sundays or public holidays
- Show customer their identity card and explain purpose
- Tell customer right to cancel
Lay By Agreements

- Price of goods to be paid by 3 or more instalments of payment and the goods won’t be given to
customer until price is fully paid (section 96 of ACL)

- ACL section 97: customer can terminate agreement prior to delivery
Transaction Evidence

- Consumer can receive transaction evidence
- Over $75 business must provide proof of transaction/upon request for smaller amounts (section
100)

Consumer Good Safety

- ACL Part 3-3

Product Safety Standards
Requirements for performance, manufacturing, processing etc
...
without intent to supply
- Saying they have the right to payment for goods that are unsolicited
- Engaging in bait advertising
- Other penalties for these things:
- Consumer guarantees
- Repairs
- Warranties
- Bans
- Safety standards
- Standards of information
- Court cannot force imprisonment
- Prosecution usually commenced by ACCC
Defences
- ACL Part 4-1
- Business not liable if:
- Contravention was result of reasonable mistake s207
- Contravention result of act of another person caused beyond control of business s209
- Goods/services did not comply with safety standard or product information standard:
- Goods were for re-supply through Australian business who did re-supply as jobs
- Business did not know that the goods did not comply with reasonable standards/relied in good
faith on person whom the business acquired the goods to tell them s210-211
Enforcement Remedies
Enforcement
- Enforceable undertakings
- If business suspects they have contravened ACL they can go to ACCC and offer them undertaking
(saying they won’t do it again)
- Substantiation notices
- ACCC can issue this notice to a business who is looking for claims made by other businesses in the
marketplace to determine whether further investigation is necessary
- Public warning notices
- ACCC can release public warning notice about business if there is reasonable grounds that the
business has contravened with the ACL
- Legal action

General Remedies
Part 5-2
Monetary penalties s224-231
Injunctions s232- 235
Business pays damages s236
Compensation order for injured s237-241

-

Consumer Guarantees

- Part 5-4 sets out remedies to consumer
Actions Against Supplier of Goods/Services

- Non-compliance not major failure: consumer requires business to give remedy
- Business can remedy the non-compliance:
- Curing title defect
- Repairing/replacing goods
- Refunding s261
- Non-compliance = major failure - cannot be remedied by business
- consumer can return the goods for refund/replacement
- Business pays difference between the value of the goods and the price that was paid for it
- Failure to comply with guarantee major failure is:
- Reasonable customer not acquiring goods acquainted with failure
- Goods have one/more differences from their description/sample/model
- Substantial unMit for purpose which goods of that nature should be, and are not remedied within
reasonable time

- Goods are unsafe

- Consumer will loose right to reject goods if:
- Rejection period ends
- Goods lost/destroyed
- Goods damaged after being delivered
- Rejection period: period where the expectation of failure to comply becomes apparent
- If goods are given as a gift the person receiving the goods has the same right as if they directly
received the goods from the supplier

- Basically as if they bought them themselves s266

Action Against Manufacturer

- Manufacturer not liable if guarantee was not complied with due to:
- Act or omission made by any one else apart from the manufacturer or agent of
- After goods left manufacturer cause of human control that occurred independently
- Suppler price higher than manufacturer recommended price for retail
Codes of Conduct
Best practise
Voluntary
Government can establish mandatory codes of conduct for particular industries
Prescribed code mandatory on all participants
Franchising code, Oil Code, Horticulture Code, Unit Pricing Code etc
...
pipelines, electricity
transmission wires etc
...
)
- Temporal dimension: period of time where market determination is made and possibilities for
substitution are considered
- TPC v Australia Meat Holdings Pty Ltd (1988) 83 ALR 299

- Trade Practises Commission: replaced by ACCC, statutory authority
Competition

- CCA deMines competition as:
- Person who is not resident or owning business in Australia who renders goods and services
imported which result in competition

- Trade Practises Tribunal deMines competition as:
- Rivalrous market behaviour
- Prices be Mlexible (reMlective of demand and supply forces)
- Independent rivalry in all dimensions
- Five elements of market structure that need to be scanned:
- Distribution size and number of independent sellers; degree of concentration in market
- Barrier height to entry
- Extreme product differentiation and promotion of sales
- Vertical relationships and integration with customers and suppliers
- Nature of arrangements between Mirms
- “If the business raised its price - without altering anything else, such as quality or customer service -
would it sell less?” (taken from textbook word for word)

Substantially Lessening Competition
Determine relevant market
Determine if it would be likely to have conduct lessening the competition in that market
If there was was it substantial?
If there wasn’t what was the purpose of the conduct in lessening the competition?

-

Cartel Conduct

- Cartel: contract that lessens competition by:
- Price Mixing
- Output controlling
- Bid rigging
- Allocation of suppliers, territories or customers
- Section 44ZZRJ of CCA prohibits cartel making in businesses
- TPC v TNT Australia Pty Ltd (1995) ATPR 41-375
- Cartel conduct is also criminal offence
- To get out of cartel:
- Conditions for immunity for cartel participants
- ConMidentiality
- BeneMits of having immunity
Price Fixing
Price Wixing: controlling the price or goods/services and/or discounts, rebates etc
...

- If conduct enables the cost to rise for entry to market
- If conduct can be desired to have competitive rivalry
- Predatory pricing: charging a low price to force another competitor out of the market
- Other types of conduct resulting in misuse of market power:
- Not giving supplies to another competitor to try and exclude them from a market
- Major retailer not selling products in other independent stores
Resale Price Maintenance

- CCA s48 prohibits this
- Price that supplier sets where the product can be sold below a minimum price
- Business will engage with this if it:
- Imposes minimum price that product cannot be sold below
- Sets price that retailers understand that they can’t sell below or advertise
- Will not advertise product below a speciMic price and has agreement with retailers
- Tells retailer not to discount product
- Threaten retailer if they don’t comply with the above
- Price Mixing is horizontal agreement
- Resale price maintenance is vertical agreement between reseller and supplier
- TPC v Sony (Australia) Pty Ltd (1990) ATPR 41-031
- Businesses can also engage in resale price maintenance:
- If the business states the selling price as a formula
- States desired price in a understanding way
- Lying about the withholding of products, saying that it is due to shipping delays or issues with
stocks

- ACCC v Dermalogica Pty Ltd (2005) 215 ALR 482

- Business does not engage in resale price maintenance if:
- Price attached to goods preceded by “recommended price” or business says that the reseller does
not have to comply with this price

- Maximum price
- Withholding of supply if reseller sells the product at a lesser cost to attract customers
Boycotts

- Action by individual/group to prevent other people from buying/selling products in certain market
Primary Boycotts

- Two or more businesses boycott products of target
- According to CC business cannot make agreement that contains exclusionary provision (restricting
supply of products to person/people)

- TPC v JW Bryant Pty Ltd (1978) ATRP 40-075
Secondary Boycotts

- Indirect

- Two or more businesses pressure third business who they don’t have dispute with to discourage
their dealing with target of boycott

Exclusive Dealing

- Restricting buyers freedom when they are choosing who to buy from, where the buy their products,
how many products they buy etc
...
g
...
Two or more persons involved
2
...
Carrying on business in common
4
...
5 million
How to Form a Company

- ASIC registers company
- Issues with 9 digit Aus company number
Trust
- One person legally owns property for beneMit of other people
Types of Trust
Express trust: intentionally set up by settler in verbal or writing
Implied trust: settlor hasn’t established trust but their conduct shows the intention of doing so
Resulting trust: automatically arises when proper is owned by trustee
Constructive trust: if court says someone has become owner of property that belongs to someone
else, the Mirst person is trustee for second who is constructive

-

Licenses and Registration
Registering Business Name

- Must register name in state/territory where that business is being carried
- Applies to sole traders and partnerships: if carrying on business in another name that name must be
registered

- Purpose of registration protects the public by:
- Making company business name available in event of problem
- Avoiding having 2 businesses with the same name
Complying with Licensing Requirements
May require one more more licenses from relevant gov
...
)
Repair premises
Rent can increase (ratchet clause)

-

Implied Rights and Duties of Parties
Lessee has rights to enjoy premises in peaceful manner
Lessor can’t do anything inconsistent to why ease was granted
Lessee must use premises in tenant like manner
Must give up possession of premises at end of lease
Must undertake duties at acceptable standard
Lessee must pay rent at time speciMied
Must keep premise in good condition

-

Commercial/Retail Shop Lease Legislation
Each jurisdiction differs in legislation
Applicable premises: types of premises legislation applies to
Lease cost
Disclosure statements
Key money
Bonds

-

Franchising

- Contractual arrangement with franchiser which permits franchisee too:
- Use franchisor business name
- Manufacture/sell franchisors products

- Franchisee pays franchisor Mixed fee/percentage of proMits
- Usually not partners
- Franchisor can be liable for harm if:
- Harm resulted from compliance with franchisor system
- Franchisor has such control over franchisee that franchisee is franchisor agent

- Can be pyramid schemes (new participants must pay to join)
- Two main types of commercial franchise:
- Product and trade name: franchisee manufactures/distributes product of franchisor under
franchisor’s business name

- Business format: franchisor supplies network of franchisees with product and business name
BeneMits for Franchising
For Franchisor
- Growth of franchise network
- Franchisor not concerned with day to day operation
- Manger is owner of business therefore motivated/successful


For Franchisee
- Less risky than starting stand alone business
- Franchisor provides detailed training
- Franchisee needs less capital
Franchising Code of Conduct
Mandatory industry code of conduct
Force of law under Competition and Consumer Act 2010
Enforce by ACCC
Cost-effective dispute resolution for franchisees and franchisors

-

Franchisor’s Disclosure Obligations

- Franchisor must give franchisee
- Copy of code
- Disclosure document
- Agreement in form to be signed
- Must also
- Inform about relevant facts about franchise within 14 days of franchisor being aware of that
- Franchisor needs give 6 months notice to franchisee if not reviewing agreement
Franchise Agreement

- Franchisee has right to terminate agreement with cooling off period for 7 days
- Franchisor cannot induce franchisee to not form association with other franchisees
- Agreement mustn’t contain sign of waiver
Dispute Resolution

- Must comply with code

Consequences of Code Breaching

- Legal action may be commenced by ACCC to affected parties
- Franchisor is in breach the court can make range of orders including:
- Injunction
- Order for damages
- Setting aside contract
- Correcting advertising
Opening For Business

Shop Trading Hours
Monday to Saturday trading hours can be restricted
Sunday trading hours can be prohibited
Legislation can protect small businesses
Legislation can restrict employers requiring employees to work outside hours

-

Setting up a Website

- Business can operate online for 24 hours a day
- Can increase revenue
- Promotes online products to global audience
Domain Names

- Name given to internet site address
- Distinguishable from other sites
- Disputes resolved using auDA or WIPO
Domain Name Disputes

- Holder of woman must surrender if:
- Name is identical/similar to another
- Domain holder has no rights to name
- Name has been used in bad faith



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