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Australian Commercial Law

Part A 

You have to choose one of the following questions:

1. Provide a summary of the constitution that your tribe developed in Workshop 1, Tasks 1 and

2, explaining how it addresses the requirements for Harta 3-part legal system.


2. Research a legal system of a foreign country and explain how it addresses the requirements of Harta 3 part legal system. 

Part B 

Compare the legal system you described in Part A to the Australian legal system, showing how they are similar and how they differ. In your conclusion, state your opinion on which difference between the legal systems would have the biggest effect in practice.

Part C

In this part, your task is again to research a single case and report to your supervising partner advising him or her about the case. However, this time, it must be a case in which a contract was induced by misleading and deceptive conduct, either under s 18 of the Australian Consumer Law or the old s 52 of the Trade Practices Act 1974 (Cth.). (This means that it must be an Australian case). The report must be done in writing using the IRAC method. It must not only analyse the case in terms of the statutory remedy of misleading and deceptive conduct, but also analyse how the case would have been decided under the common law of misrepresentation. There will therefore be two conclusions, one for the statutory action, and another for the common law. (Misrepresentation and misleading and deceptive conduct are in Module 6 of the course).

Sample Answer

Part A
1. The young members of the tribe have shown dissatisfaction in relation to the provisions made in the following provisions. The tribe and its members had agreed to follow the below rules:

The actions of the tribe should be done in accordance to the tribes welfare
The appointment of the group of people in the tribe should be done via an election system, this group had the duty to enforce the decisions of the eldest tribe members
The decisions of the tribe should not be partial
The rules should be implemented in an effective manner
A group should be set up to solve the dispute regarding the rules that are made by the elder tribe members
Primary rules have to be preceded by the secondary rules
Every tribe member should be equal in relation to the rules made
According to Hart’s Legal System there has to be three effective secondary rules which are, the Rules of Change, Rules of Adjudication and the Rules of Recognition, applied to the propositions made by the tribe. There was need of secondary rules in order to prevent any kind of uncertainty in relation to the primary rules. The social pressures that influences the decisions made by the tribe members in the proposal was sought to be removed the formation of these rules would help us know if a breach was made in relation to the primary rules.

The Constitution of Australia states that there has been creation of the secondary rules as a part of the legal system. The Australian courts also follow the system of Common Law as long as they do not contradict the Parliamentary laws. The Constitution for its better functioning has divided its powers into three different organs, the “legislative, executive and the judiciary”. “Legislature” is considered as the law making body, “executive” usually implements the law and the “judiciary” punishes the wrongdoers for the illegal acts done.

Few of the tribe members here are not satisfied with the decisions made by the tribe as they think it to be partial and unfair in some situations also they are not content with the fact that they have no scope or option to challenge the decisions being made. In relation to this the Australian Legal System comes to effect. They make laws that will be applicable to every member equally and will be impartial and fair and also give reasons for their decisions. The decisions made by the superior courts will affect the lower courts.

Part B
The Australian Legal System and the Legal System of the tribe are different in regard to their rules of uniformity, recognition and enforcement. It was observed that the tribe members were in uniformity with their decisions made earlier as the elder tribe members made the decisions and their decisions were regarded partial and did not have any obliging impact on the wrongdoers as the other member would ignore the decisions in most cases. The tribe members also had no option given to them to challenge the decisions of the elder tribe members they had to accept and bind by it even if they thought that the victim was being denied justice. This encouraged lying and deceiving of the wrongful acts from the side of the tribe members in order to achieve justice by the elder tribe members. The decisions that were made the decision making members did not did not give any reasons for making such decision as this would cause argument among the tribe members in relation with the dispute that has taken place.

The Australian Legal System is based on two sources that are the Common Law and the Parliamentary Laws. The three main organs of the governing system function independent and separately. The Parliament is the law making body which give out the statutes and the legislations. The Ministers of the government are considered in the Executive organs that have the powers to administer the law that are made by the parliament. The Judiciary consists of the judges and the courts that have the power to punish those who carry out any illegal activity and do not comply with the law. The separation of power is a doctrine that functions individually and separately without interfering in the powers and the duties of each other.

The decision of the court are binding on all the parties as well as binding on the subordinate courts. The subordinate courts have to abide by the decision that is made by the higher courts so that the precedents can apply on similar cases. However, the decisions made by the courts are not biased or unfair also reasons are given by the court for the decision they make. But the legal system that the tribe follows punishes the wrongdoer after the production of the evidence and the accused can defend them only after perusing all the evidence. Whereas, in the courts decision if the parties are not satisfied they can further appeal to higher courts.

Certain similarities have also been observed between the two legal systems in their way of functioning which include its nature and the binding impact its legal rules have. In both the legal systems the victims are often denied justice. The tribe members that are denied justice do not have the option to challenge the decision of the elder tribe members but in the Australian Legal System the decisions made by the judges can be appealed in the higher courts.

The two legal systems have yet have significant difference. The Australian Legal System have been divided into three organs the executive that is the law making body, the judiciary that implements the law and the judiciary that punishes the wrongdoers. All the three organs work separately and independently having different powers and duties to oblige to. Moreover, the decisions of the court are binding on the people as well as the courts. The rules are binding on both the legal system and their members to be obliged by it. Whereas, the legal system of the tribe do not have separate legal organs as there elder members make the decisions.

Part C
Case: Google Inc V Australian Competition and Consumer Commission

In Google its search engine is used for the production of ‘organic’ and ‘sponsored’ links. Such sponsored links were a part of the paid advertisement. The names of the competitors have been used as keywords by some of the advertisers. In this case, it has been highlighted that Google was engaged with “misleading and deceptive” conducts which was stated under section 18 of the Australian Consumer Law.

The trial judge stated that such advertisements that were a part of the sponsored link did contain misleading and deceptive representations. Such kind was considered as  a false representation among Google and other companies. Justice Nicholas observed that Google could not be held responsible for this act because Google had just acted as a channel for portraying the advertisement for the public without giving any approval. An opinion was framed by the court that Google had made such “misleading and deceptive” representations on their own and it was not due to the mere conduit of the advertisement. Google’s appeal was upheld by the High Court. Few of the Justices who were very renowned said that Google had not made any such misleading or deceptive conduct or had adopted any such form of representation of advertisement on their own. Although, Justice Hayne upheld the appeal, he observed that this kind of advertisement that was being displayed was the outcome of the payment made by a third party.  Section 52, laid down that it was not to prove that if Google had taken up such kind of representations and only for this reason Google should be allowed to appeal to the court. He also stated that there has been no evidence in relation to which it can be said that Google had taken up such an advertisement. There were no messages that showed that Google was responsible in creating this kind of sponsored link.

In the year 2010, the “Court of Justice of the European Union” had made a decision in same case of AdWord’s case which could be used in relation to Google France. Although the cause of action was different the outcome of the case is similar to Adwords case. It was highlighted that any such kind of adoption was not done to infringe any right by Google. In this case, it was also stated that there was an inconsistency in the outcome of the case in relation to the approach of the service provider on the internet who acted as a third party. Google’s search engine was an interactive tool and gave a scope to different forms of advertisements as their main object.

The AdWrod’s have made drastic changes in their policies from 2010 to 2011, the term ‘sponsored links’ was replaced by the term ‘ads’ and a separate icon was made for these form of advertisements. When they would click on that icon it would explain their particular use. This could help in decreasing the confusion on the page of Google. The use of trademark was also removed in 2013, even if a complaint was made trademark could not be the main object of it. Tremendous changes were brought due to this act and as a result the consumers had started benefiting even more that what they had been. Over all Google’s customers with regard to such advertisement were also content with the new changed that were made.

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