LAWS20058 Australian Commercial Law

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Question:

Part A

One of the following questions must be answered:

Please provide a summary the constitution your tribe created in Workshop 1, Tasks 1.

2, explaining the Harta 3-part legal structure.

Find out the legal system in a foreign country. Explain how it complies with Harta’s 3 parts legal system.

Part B

Compare the Australian legal systems to Part A. This will show how similar they are and what differences they have.

In your conclusion, you should discuss which difference between the legal system would have the most impact on your practice.

Part C

Your task in this section is to again research one case and then report back to your partner, advising them about it.

It must be a case under which a contract has been induced by misleading or deceptive behavior, either under s 18 (Australian Consumer Law) or s 52 (Australian Trade Practices Act 1974, Cth.).

It must be an Australian case.

You must submit the report in writing following the IRAC procedure.

The report must analyze the case using the statutory remedy for misleading or deceptive conduct. However, it must also examine how the case would be decided under common law misrepresentation.

So there will be two conclusions: one for the statutory and one for common law.

Module 6 covers misrepresentation, misleading and deceptive conduct.

Answer:

Part A

The following provisions were dissatisfied by the young tribe members.

The tribe and its members had previously agreed to follow these rules.

The tribe should follow the tribe’s welfare when acting.

The election system is used to determine the tribe’s members. They are responsible for the enforcement of decisions by the oldest tribe members.

The tribal decisions should not be considered partial

It is important to implement the rules in a professional manner

It is necessary to form a group to resolve disputes regarding rules being made by elder tribal members

Secondary rules must precede primary rules

All tribe members should be equal with respect to the rules.

Hart’s Legal System explains that there should be three primary rules: the Rules of Change (Rules of Adjudication), the Rules of Recognition (Rules of Recognition) and the Rules of Change (Rules of Adjudication). These secondary rules must be applied to any propositions made by the tribe.

To prevent any uncertainty about the primary rules, secondary rules were needed.

To remove social pressures from tribe members making decisions about the proposal, it was proposed to create secondary rules. This would let us know if the primary rules were broken.

According to the Constitution of Australia, secondary rules were created as a part of Australia’s legal system.

The Australian courts adhere to the Common Law system, provided they don’t contradict the Parliamentary law.

For better functioning, the Constitution divided its powers into three distinct organs: “legislative”, “executive” and “judiciary”.

“Legislature”, the law-making body, is usually implemented by the executive and “judiciary” punishes wrongdoers for illegal acts.

The tribe members here aren’t satisfied with the decision made by the tribe. They consider it unfair and partial in some cases.

This is when the Australian Legal System takes effect.

They will make laws that will apply to everyone equally, will be impartial and fair, and also provide reasons for their decisions.

Lower courts will be affected if the superior court makes a decision.

Part B

The Australian Legal System is different from the Legal System for the tribe in terms of its rules of uniformity and recognition.

It was noticed that tribe members were in agreement with earlier decisions as elder tribe members made them. Their decisions were regarded as partial and had no obliging effect on wrongdoers since the other member would ignore most of the cases.

Tribe members had no right to challenge the elder tribe members’ decisions and had to agree to it, even if they felt the victim was not being treated fairly.

In order to get justice from elder tribe members, the tribe members were encouraged to lie and deceive.

Because of the potential for conflict among the tribe members, the decision making members didn’t give any reasons.

The Australian Legal System was built upon two sources, the Common Law as well as the Parliamentary Laws.

The three main organs that make up the governing system work independently and in their own ways.

The parliament is the lawmaking body that gives out the statutes.

The Parliament’s Ministers are included in the Executive organs which have the authority to implement the laws.

The Judiciary includes the judges and courts that can punish those who are guilty of illegal activities and don’t comply with the law.

Separation is a doctrine which functions independently and in isolation without interfering with the powers or duties of the other.

The court’s decision is binding for all parties and also binding for the subordinates.

To ensure that similar cases can be considered, the courts of appeal must agree to the higher court’s decision.

Although the court’s decisions are not biased or unjust, they are also impartial and the reasons given by the court.

However, the tribal legal system penalizes the wrongdoer once the evidence has been produced. The accused cannot defend themselves until they have reviewed all of the evidence.

However, if the parties aren’t satisfied with the decision of the courts they can appeal to higher courts.

The two legal systems have some similarities in how they function. This includes their nature and the binding effects of their legal rules.

Victims are often denied justice in both legal systems.

Tribal members who are denied justice cannot challenge the decision made by elder tribe members. However in the Australian Legal System, the judges’ decisions can be appealed to higher courts.

The differences between the two legal systems are still significant.

The Australian Legal System has been divided into three bodies: the executive which is the law-making body, the judiciary to implement the law, and the judiciary to punish the wrongdoers.

The three organs are independent and have different duties and powers.

The decisions of the court also have binding effect on the people.

Both the legal system and its members must abide by the rules.

However, tribes do not have separate legal systems as the elders make the decisions.

Part C

Case: Google Inc. v. Australian Competition and Consumer Commission

Issue

Google’s search engine is used to generate ‘organic’ or’sponsored’ hyperlinks.

Sponsored links are part of paid advertisements.

Some advertisers used keywords based on the names of competitors.

This case reveals that Google was engaging in “misleading or deceptive” conducts as defined under section 18 Australian Consumer Law.

Rule

According to the trial judge, such ads that were part of sponsored links contained misleading and deceptive representations.

These advertisements were considered false representations by Google and other companies.

Justice Nicholas pointed out that Google could not be held liable for this act as Google only acted as a medium for presenting the advertisement to the public without consent.

The court reached the conclusion that Google had made these “misleading” and deceptive representations independently and not because they were the conduit for the advertisement.

The High Court upheld Google’s appeal.

The High Court granted Google’s appeal. However, few of the very prominent Justices said that Google had not engaged in misleading or deceptive conduct.

Justice Hayne affirmed the appeal but noted that the type of advertisement displayed was the result a third-party had paid.

Section 52 provided that Google cannot appeal to the court if it is not proven that Google took up such type of representations.

He also said that there was no evidence to support the claim that Google took up this advertisement.

There was no evidence that Google was involved in the creation of this sponsored link.

Application

The same AdWord’s case was decided by the Court of Justice of the European Union in 2010. This decision could have been used to relate to Google France.

The outcome of this case is very similar to Adwords’ case, despite the fact that the cause of action was not the same.

Google does not consider such adoptions to be infringing of its rights.

It was also stated in this case that there was inconsistency in how the case ended in relation to the way the internet service provider acted as third parties.

Google’s search engine offered an interactive platform and allowed advertisers to display different types of ads as their main objective.

Conclusion

AdWrod’s has made significant changes to its policies between 2010 and 2011. The term’sponsored link’ was replaced by ‘ads’, and a separate icon for these forms of advertisements was created.

It would tell them what they were used by clicking on that icon.

This could help to reduce confusion on Google’s pages.

In 2013, trademarks were also removed. Even though a complaint was filed trademark could not be its main object.

The act caused significant changes, and the consumers were able to enjoy even greater benefits than before.

Google’s advertisement customers in general were happy with the new changes.

Reference List

“Who is downloading pirated paper?”

Science 352.6285 (2016): 508-508.

Cole, Daniel H., “Economic Property Rights” as “nonsense on stilts: A Comment on Hodgson.”

Journal of Institutional Economics 11.04 (2015) 725-730.

“Legal institutionalism. Capitalism and law’s constitutive role.”

Journal of Comparative Economics 45.1 (2017) : 188–200.

“Google Inc. v Australian competition & consumer commission [2013] HCA1 : Misleading representations and deceptive statements.”

UW Austl.

“The path taken but not followed: HLA Hart’s Harvard essay about discretion.”

Miller, A. M., “On the Road To Improved Social And Economic Welfare: The Contribution to Australian Competition Law Reform.”

Browse this Paper (2016).

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“Legal positivism: The sources of law.”

Argumenting About Law, 117 (2013).

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Schultz T. and J. Darley.

Handbook of moral development and behavior: Theory 2 (2014) 247-278

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Dawn Watkins, Mandy Burton, and Dawn Watkins.

Methods of research in law.

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