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Sunday, October 10, 2010


 Donoghue v. Stevenson 1932 – demonstrated that manufactures and retailers have a duty of care towards their consumers and also a duty to supply products of merchantable quality
Amadio v. commonwealth bank of Australia 19?? – demonstrated that low levels of English literacy, lack of independent advice, commercial expertise and knowledge of the transaction entered were sufficient disadvantage for the bank to be guilty of unconscionable conduct
R v. Easom 1971 – established that for an offence to be classified as larceny, the intent of permanently depriving the owner of their property must occur. If they only ‘borrow’ the goods then larceny hasn’t occurred
Reardon v. Morley Ford Pty Ltd 1980 – monetary penalties given to Morley Pty Ltd after being charged with bait advertising
Barton v. Armstrong 1973 – verified that a contract may be void if obtained under duress
Cory Davis Case 1999 – reinforced the presumption that children are doli incapax
Dudley and Stephens 1884 – the court rules that necessity can’t be used as a defence for murder as an accused person who kills another to save themselves is suggesting that their own life is more precious
The Case of Desouza 1995 – the judge called for some aspects of the definition of diminished responsibility to be re-examined
Cheatle 1993 – the high court found that it was unconstitutional for a jury trial to be anything other than a unanimous decision. This only covers federal trials
Dietrich Case – created precedent in the high court that there was no common law right to legal representation at public expense however they also held that a judge should postpone a case where a person, through no fault of their own can’t afford legal representation in a serious matter
Case of Pinochet 1999 – this case determined that bias isn’t allowed as part of natural fairness
Case of Gary Glazner late 1990’s – relatively small penalties received for keeping at least 40 women in debt bondage – sexual slavery conditions demonstrates the hard nature of this crime to prosecute, investigate and determine
Hyde v. Hyde and Woodmansee 1866 – defined marriage as ‘the union of a man and a women voluntarily entered into for life to the exclusion of all others’
Corbett v. Corbett 1970 – ruled that a man who had undergone a sex change was still legally a man and so couldn’t marry another man. Same thing applies for women
The Marriage of S 1980 – established that a marriage isn’t valid of consent isn’t freely given
Di Mento v. Visalli 1973 – demonstrated that a marriage is void if consent isn’t freely given
Duchess of Argyle v. Duke of Argyle 1967 – determined that the confidentiality of personal secrets should be an expectation of marriage
Eliades v. Eliades 1981 – determined that maintenance of spouse should be paid/should occur
Re Marion (secretary department of health and community services) and others 1992 – the high court ruled that parents don’t have the authority to consent to the sterilisation  of their daughter regardless of their reasons as it wouldn’t be in the best interests of their daughter – demonstrated that the best interest of the child is paramount in family law
Davies v. Sparkes 1990 – judge found that a breakdown of relationship as defined in the de facto relationships act didn’t occur
Tye v.Tye 1975 – determined the issue of intention to divorce after separation
Gronow v Gronow 1979 – questioned whether there was a principal of law that a female child is best left in the custody of her mother. Decided that it was a matter of common sense, not a rule of law
The marriage of Grimshaw and Grimshaw 1981 – examined the issue of religion in deciding custody of children. It was decided that the child’s best interests not the religion were to be the primary concern
The marriage of M and M 1977 – considered the needs of children to live with their siblings
Shepherd v Shepherd 1979 – considered the child’s best interests in custody when one of the parents were living in a same-sex relationship
Albany v Albany 1980 – highlighted that the factors to be considered when determining a claim (during divorce) were the: -          length of the marriage-          amount of time the wife has spent as a parent and home-maker and the degree to which she contributed to the role-          financial contributions of the husband-          future need of both parties
Re Evelyn – this case determined that the natural/birth mother has rights over the child in a surrogate arrangement – she can change her mind and keep the baby even if she has an agreement to give the baby to another family
F v L and others 1983 – indicated the stance of the Australian government in relation to adoption of ASTI babies. The decision that was reached was that it was important that the child be brought up acknowledging his racial and cultural heritage
Family Leave Test Case 1994 and Personal Carers Leave Test Case 1995 – recognised that gay or lesbian employees are entitled to use sick leave to care for same-sex partners who live with them as their de facto partner on a bona fide basis
The case of Andrea Patrick 1993 – resulted in the Bail Act 1978 (NSW) being amended through the removal of the presumption in favour of bail. Now it’s up to the offender to prove to the court that they should be granted bail
Re Patrick 2002 – established the right of the sperm donor to have access to children
ACCC v Nissan Motor Company Ltd 1998 – demonstrated the criminal charges can be laid for false and misleading advertising
Water house v Bell 1991 – demonstrated that the rules of natural justice apply when granting or revoking licences.
Balmain New ferry Company v Robertson 1906 – shows that a contract is binding on both parties and not reading the contract (including fine print) isn’t a valid condition for the contract to be rescinded
Couchman v Hill 1947 – shows that an oral contract is legally binding and enforceable by the courts
Associated Newspapers Ltd v Bancks 1951 – indicated that a contract can be rescinded because of the breach of an essential condition
Thornton v Shoe Lane Parking Ltd 1971 – established that unusual or unreasonable clauses on tickets or documents (e.g. delivery note) can’t be included in contracts
Walker v Hungerfords 1989 – Walker sued Hungerfords for miscalculating tax deductions and was awarded damages for the loss of the use of the uncovered monies
Beyond Productions v Curro 1993 – the court placed an injunction on Curro as she was entering a contract with a rival TV network whilst still contracted to Channel Seven
Ley v Dougan 1946 – a specific performance order was placed on Dougan because he entered an oral contract to sell Ley his taxi-cab and licence
Oppenhaim v Charles Rickards Ltd 1950 – oppenhaim sued Rickards because of a substantial delay in the goods ordered. He was entitled to have the contract rescinded
Grant v Australian Knitting Mills 1936 – showed if a good isn’t of proper fitness for the purpose intended or of merchantable quality then the retailer is liable for breach of condition of fitness and the manufacturer is liable to pay damage for doing something wrong in manufacture (e.g. putting too much sulphite in underwear)

1898 – Wills, Probate and Administration Act 1898 (NSW) – marriage revokes any will in existence prior to the wedding
1900 – Crimes Act 1900 (NSW) – defined and classified crimes
1901 – Customs Act 1901 (Cwlth) -          Married Persons (property and tenants) Act 1901 (NSW) – made the doctrine of agency void
1903 -  Judiciary Act 1903 (Cwlth)
1908 – Pure Foods Act 1908 (NSW) – specific consumer protection legislation
1909 – Traffic Act 1909 (NSW)
1914 – War Pensions Act 1914 (Cwlth) – amended in 1916 to include de facto spouses
1915 – Meat Industry Act 1915 (NSW) – specific consumer legislation
1923 – Sale of Goods Act 1923 (NSW) – designed to protect consumers and divided the promises in the contract for the sale of goods into conditions and warranties
1926 – Workers Compensation Act 1926 (NSW) – amended in 1951 to allow de facto partners to claim compensation
1958 – Migration Act 1958 (Cwlth)
1959 – Matrimonial Causes Act 1959 (Cwlth) – said consummation of marriage an aspect of a valid one, also maintained fault based divorces
1961 -  Marriage Act 1961 (Cwlth) – set out the requirements for a valid marriage
1966 – Poisons Act  1966 (JURISDICTION?) -          Bankruptcy Act 1966 (Cwlth) – this act places a limit on the contractual capacity of bankrupts
1970 – Minors (property and contracts) Act 1970 (NSW) – states that children may seek their own dental and medical advice after the age of fourteen and allows them to enter contracts if it will benefit the child
1973 – District Court Act 1973 (NSW) 1974 – Trade Practices Act 1974 (Cwlth) (TPA) – codified (wrote down) the practices that are unfair to consumers and enacted provisions from the sale of goods act -          Motor Dealers Act 1974 (NSW) – regulates motor dealers so they provide a high standard of service as there is a high potential for death as well as providing them with licences
1975 – Family Law Act 1975 (Cwlth) – established a family and many laws and definitions of them + only ground for divorce is irretrievable breakdown of marriage -          District Court Act 1975 (NSW)-          Adoption of Children Act 1975 (NSW) – states that the child becomes the legal child of the adoptor
1976 – Federal Court Act 1976 (Cwlth) -          Children (equality of status) Act 1976 (NSW) – removed discrimination between nuptial and ex-nupital children that exists in common in the inheritance of parents property
1977 – Anti – Discrimination Act 1977 (NSW) – prohibits all forms of discrimination
1978 – Bail Act 1978 (NSW) – set out bail regulations and conditions
1980 – Motor Vehicles Repairs Act 1980 (NSW) – regulates and sets out condition for motor vehicle repairers, also requires licensing and training to ensure quality service -          Contracts Review Act 1980 (NSW) – assists in defining the rights and remedies for borrowers and providers
1981 – Crimes (Sexual Assault) Amendment Act 1891 (Cwlth) – made rape in a marriage a crime
1982 -  Local Court Act 1982 (NSW) – established the local courts -          Family Provision Act 1982 (NSW) – allows the supreme court to overturn a will which has excluded a spouse or children from inheriting -          Adoption of Children (amendment) Act 1982 (NSW) – made it an offence to exchange money for a child e.g. in surrogacy, adoption
1983 – Married Women’s property Act 1983 (NSW) – gave women statutory protection of property purchased by them or of money that they had legally obtained during marriage
1984 – De Facto Relationships Act 1984 (NSW) – amended in 1999 by the property (Relationships) legislation amendment act -          Credit Act 1984 (NSW) – determine the provisions and conditions of credit in NSW-          Credit (Administration) Act 1984 (NSW) – states that finance companies and their agents must be registered
1985 – Drug Misuse and Trafficking Act 1985 (check Cwlth???)
1986 – Travel Agents Act 1986 (NSW) – attempts to minimise fraud and provide safety for consumers through compulsory licensing and travel agent participation in a travel compensation fund
1987 – Children’s Court Act 1987 (NSW) – established this court -          Fair Trading Act 1987 (NSW) – exists to protect consumers and to cover constitutional loopholes in the TPA-          Children (Criminal Proceedings) Act 1987 (NSW) – provide the guidelines fore the children’s court where the primary motivation in the hearing is to reform and rehabilitate the young offender -          Child Care and Protection Act 1987 (NSW) – state that parents have the right to discipline their children as long as that discipline is reasonableilCCccchhh
1988 – Summary Offences Act 1988 (NSW
1989 – Child Support Assessment Act 1989 (Cwlth) – established the child support agency within the ATO to enforce the regular payment of child maintenance -          Artificial Conception Act 1989 (Cwlth) – artificially concepted children (surrogacy, IVF) have the same rights as naturally conceived children
1990 –Adoption Information Act 1990 (NSW) – adopted children can be reunited with their birth parents if both the child and the parents have put their name on a register and agreed to make contact  -          Education Reform Act 1990 (NSW) – stated that children must attend school between six and fifteen
1995 – Criminal Code Act 1995 (Cwlth) -          Family Law Reform Act 1995 (Cwlth) – moved the focus of family breakdowns away from parents’ rights and towards parental responsibility and children’s rights
1996 – Firearms Implementation Act (Cwlth) -          Status of Children Act 1996 (NSW) – gives ex-nuptial children the same rights as nuptial children – replaces children (equality of status) act 1976
1998 – ASIC Act 1998 (Cwlth) – set up the Australian securities and investment commission -          Children’s and Young Persons (Care and Protection) Act 1998 (NSW)-          Ombudsman Amendment (child protection and community services) Act 1998 (NSW) – required any school or preschool to notify the ombudsman of any complaints or investigation made in relation to child abuse against any employee-          Child Protection (prohibited employment) Act 1998 (NSW) – this prohibits the employment of people in any child-related areas if they have been convicted of any serious offences in relation to children-          Commission for Children and Young People Act 1998 (NSW) – established the commission for children and young people whose primary aim is to protect and promote the welfare of children and young people-          Summary Offences Act 1998 (NSW)
1999 – Criminal Code Amendment (slavery and sexual servitude) Act 1999 (Cwlth) -          Property (Relationships) Legislation Amendment Act 1999 (NSW) – broadened the concept of a family – to include de facto relationships, same-sex couples etc
2001 -  Consumer, Trader and Tenancy Tribunal (CTTT) 2001 (NSW)
2005 – Anti-Australian Terrorism Act 2005 (Cwlth)
2006 – Family Law Amendment (shared parental responsibility) Act 2006 (Cwlth)

Class Actions: -          Kentworth Truckers Claim ?????-          GIO Case 2001?????

UN International Declaration of Human Right 1948
War Crimes Charter 1948
Anti – Slavery Convention 1926
International Covenant on Economic, Social and Economic Rights 1966
International Covenant on Civil and Political Rights 1966
UN Convention on the Rights of the Child 1959 (UNCROC)
Convention on the Elimination of all forms of racial Discrimination 1965
Convention on Discrimination Against Women 1967
Convention on the Rights of the Mentally Retarded Persons 1971
Magna Carta 1215 – this limited the power of the monarch so were no longer absolute
Protocol to Prevent, Suppress and Punish Trafficking in Persons 2000 (trafficking protocol)
League of Nations Slavery Convention 1977
UN Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery 1957
UN Convention for the Suppression of the Traffic in Persons and the Exploitations of the Prostitution of Others 1949

Caveat Emptor – let the buyer beware
Laissez faire philosophy – let things be
Obiter dicta – other statements made by judges’ e.g. personal opinions. They create no precedent
Stare Decisis – the binding force of precedent
Precedent – the legal principles applied by judges in earlier cases on the same or closely related points
Mens Rea – the intent to commit the crime
Actus Rea – the person acted on the intent
Causation  - the direct link between doing something and the act (between mens rea and actus rea)
Judical Discretion – the wide discretion judges have in what they determine in any individual case
Prima Facie – on the face of it – principal used to determine whether a serious indictable offence should go to trial during the committal hearing
Doli Incapax – a conclusive presumption that no person under the age of ten is capable of committing a crime. Between 10 and 14 is also presumed of being incapable of committing a crime however evidence can rebut this presumption
Appeal De Novo – a legislative appeal that allows the appellate court to re-hear the case including new evidence
Double Jeopardy Rule – a person can’t be charged with the same crime after acquittal except when fresh evidence comes to light (fairly recent legislative change)
Domestic Law – law of a country applying to it’s own residents
International Law – law applied by countries, principally to each other but now also extending to international organisations, peoples, corporations or individuals
Public Law – action relates to the function of the government e.g. administrative, constitutional, taxation and social security law
Private Law – law between individuals e.g. a contractual wrong or a tort
Civil Law – between individuals, the aim is to compensate the injured person
Criminal Law – form of public laws that are outside the control of any one individual. It’s the duty of society to enforce rights that may arise if an individual or corporation should break that particular law.
Contractual Wrong – a breach of a duty created by a contract
Tortious wrong (tort) – a breach of duty owed by one person to another (isn’t contractual duty) that has caused them harm
Contract law – part of commercial law and is governed by common law. It’s when persons of full legal capacity freely enter into a legally binding contract by which they are legally bound. If the contract is failed to be upheld, the offender can be taken to court for breach of contract
Implied Terms – terms of a contract that aren’t expressly stated but implied to give effect to the presumed intention of the parties
Property law (incorporeal rights) – rights associated with property but not actually visible or tangible
Corporeal rights – these are usually to land or houses and are visible and tangible
Tort Law – branch of law concerned with civil injuries and their remedies. Four main types are negligence, nuisance, defamation and trespass
Justice – the moral value which all societies strive to achieve through their legal system. It is the most important criterion or standard against which all laws should be measured
Equity – as a body of rules will be applied to achieve a just result
Fairness – the quality that underpins justice and equity
Equality – basic or natural right of all people, an attribute of justice and at the centre of the rule of law. -          Equality before the law means that every person will have the same legal rights unless it can be shown that there is justification for that person to not have the same rights
Anarchy – a state of society without government or laws
Doctrine of Parliamentary Sovereignty – occurs when parliament is supreme law maker and its laws must be obeyed by all
Rule of law – a system in which the administration of justice and laws are known and certain: laws will apply equally, prospectively and to all: it implies an independent judiciary and respect for the value and dignity of the individual.
Natural Justice – a rule of common law that when nay decision that affects a person is made , that person has the right to be heard before the final decision is made and the person making the decision shouldn’t be biased
Customary law – those obligatory customs and practices that are sufficiently fixed and applicable over a substantial area as they regulate the activities and behaviour of those people to whom they apply e.g. indigenous communities
State Sovereignty – when governments run their own affairs in their own way and aren’t answerable to any higher authority
Natural Law – when governments are answerable to a higher authority. Based originally on the need to follow religious thinking NOW based on international human rights law
Hobbesian sovereignty – the idea that the strong central ruler would make the laws and enforce them and so maintain national unity.
Popular Sovereignty – when the ruler is seen as interpreting the wishes of the ‘people’
Divine Mandate – the belief that the authority to govern is given by God
Apparent Bias – when a judge is so closely associated with one of the parties before him/her that the law would automatically disqualify the judge form deciding the case
Human Rights – the privileges inherent to all human beings or the fundamental rights to which all humans have claim
Moral rights – ideas about rights from people’s conscious or religious beliefs about how they should behave in society
Customary Rights – refer to implicit understanding and are based on trust
Legal Rights – based on a legal system
Monogamy – marriage to one person
Serial Monogamy – a person who marries and divorces a number of times (similar to monogamy)
Polygamy – having more than one partner
Polygany – having more than one husband
Polyandry – having more than one wife
Bigamy – being married to more than one parson at a time
Fidelity – being faithful to a spouse
Consanguinity – marriage to a blood relative – prohibited by the marriage act
Unito Caro – one body (husband and wife regarded as the same people)
Consortium – love, respect and sexual relations expected of a husband or wife
Nuclear Family – consists of parents and children
Blended Family – when single parent with children marry e.g. Brady Bunch i.e. stepsisters and stepbrothers
In loco parentis – in place of a parent – how teachers act
Bests Interests of the Child – paramount concern of family law
Corporal Punishment – any means of punishing the body e.g. hitting. This is frowned upon/a crime
Pre-nuptial agreements – an agreement drawn up before a marriage defining the rights and responsibilities of each partner. It can also include agreements on separation
Surrogate motherhood – where a women bears a child for another
Guardianship – right and duty of protecting a child as well as care, control and maintenance
Fostering – when a parent temporarily leaves a child with other carers without surrendering full parental rights
Filius Nullius – nobody’s child – in relation to ex-nuptial children
ADVO – apprehended domestic violence order
APVO – apprehended personal violence order
Morality – conformity to the rules of society
Privity of contract – people who aren’t parties to the contract can’t sue or be sued as a result of the contract
Damages – a form of monetary compensation which attempts to put the parties back into the position that they were before the contract was entered into
Injunctions – a court order which compels a party to complete contractual obligations. These are uncommon orders as the parties who have to perform them are often unwilling and then perform poorly
Restitution – allows a party to be compensated when the defendant has been unjustly enriched
Rectification – the modification of a contract to ensure that it complies with the agreed wishes of all the parties
Rescission – used in various situations where a contract is brought to an end before completion. It’s the order that allows a party to treat the contract as never having any effect

Michael Atteya

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