who wants to be a lawyer? (1 Viewer)

Lazarus

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The question would have helped, but I'll do what I can. ;)

In my discussion of the contractual and statutory consumer provisions, I shall deal with the following issues: the hospital’s contract for the sale of masks, the advertisement in the Herald Newspaper and the sale of masks to the consumers who subsequently suffered damage. (Good intro. Perhaps briefly point out the legal points behind those issues - e.g. "<s>the</s> Evans' alleged breach of the hospital's contract for the sale of masks".)

The hospital in the article entered into a contract with Evans Pty Ltd. for the supply of 1000 SARS masks. Evans subsequently could not meet the demand for the quantity of masks within the stipulated time, because “demand was so strong” and “they had made a much bigger profit on the masks sold to the customers”. Therefore Evans is seen to have breached what is an essential term of the contract.
(You've addressed the facts but not the law - what was the actual term that was breached by Evans? Why was it an 'essential' term? In fact, 'essential term' is generally interchangeable with 'condition'... try not to use it outside of that context.)

If the term of delivery was a condition, then the hospital may seek to repudiate the contract and sue Evans for damages.
(Specify the type of damages - e.g. "damages for loss of bargain". Note also that the term 'repudiation' is generally only used with reference to the defaulting party - usually a rogue - when they are evincing an intention not to be bound by the contract. The remedy for breach of contract is properly characterised as a right to terminate.) If the term of delivery was one of warranty, then the hospital cannot rescind the contract but can apply for the equitable remedy of specific performance and/or sue for damages. (Point out that the equitable remedy is highly discretionary and usually unavailable. You should be citing authority for the different remedies resulting from breach of conditions and warranties. What about innominate/intermediate terms?)

Since the article does not clarify on the matter, an alternative scenario is Evans could not meet the hospital’s demand because of forces beyond its control, such as the running out of raw materials. In this case the contract is terminated by frustration, whereby the hospital can rescind the contract and recover any monies paid.
(Good! Authority? Is the hospital still entitled to recover any monies paid if Evans had incurred expenditure in ordering the masks and no reimbursement is forthcoming?)

The second issue is that of the advertisement. An advertisement was placed in the Herald Newspaper for the sale of “SARS-proof masks” and the company guaranteed it was impossible to catch SARS through the masks. Since two consumers have subsequently been infected with SARS, Evans might find that the advertisement is in breach of section 52 of Trade Practices Act for misleading and deceptive conduct and it is in breach of the penalty provision Section 75AZC(1)(a) of the same Act for false representation of standards and quality.
(Good. Could Evans also be liable under the relevant Sale of Goods Act?)

It is in breach of s 52 because Evans is “a corporation… in trade or commerce… [engaging] in conduct which is misleading or deceptive”: in this case, it is an untruth to state that the masks are SARS-proof. Breach of s 52 would give rise for a claim for damages by the consumers, ancillary orders to publish the truth and an injunction to order Evans to stop advertising in this way.
(Also good.)

It is a breach of s 75AZC(1)(a) because Evans is “a corporation… in connection with the promotion of any means of supply… falsely represent[ing] that the goods are of a particular standard, quality, grade”. As per the
(insert court level here) decision in Hartnell v Sharp Corp of Australia (1975), such a false representation could lead to a maximum penalty of $1.1 million for a corporation like Evans. (Good.)

The final issue is that of the Evan’s liability as a manufacturer. The liability of a manufacturer arises when the consumer (in this case Kevin and Jean) suffers personal injury because of the defective nature of the goods. Under Part V Division 2A of TPA, Evan’s as a manufacturer is liable because the goods are not of a merchantable quality (s 74D), they are not fit for the purposes for which the goods are supplied (s 74B), they do not correspond with description as ‘SARS-proof’ (S 74C). Further they are liable under the same section for breach of the express warranties they made in their advertising material (s 74G). Consumers who suffer personal damage as a result of manufacturer liability can bring an action for damages against the manufacturer without the need to prove negligence under this Division.
(Tie each of those subsections to the relevant point(s) from the factual matrix you've been given - i.e. add on just a few words that explicitly state the reason for Evans' goods not being of a merchantable quality.)

Therefore it can be seen that Evans is liable on many accounts. They are liable for damages and penalties due to their failure to supply and subsequent breach of the hospital’s contract. They are liable to the consumers for the misleading and deceptive conduct and false representations in their advertising. Furthermore they are liable for their liability as a manufacturer of those masks to the consumers for failure to ensure the masks are of merchantable quality and fit for the purpose of protecting against SARS.
(They are "liable for their liability as a manufacturer"? Finish with a nice concluding statement - e.g. "Evans could therefore be liable for damages in both contract and tort.")


All in all, quite a good response. I think it might be worth 7/10.
Citing the appropriate authorities would probably bump that up to 8 or 8.5.
 

MoonlightSonata

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Originally posted by Asquithian
"In summertime village cricket is a delight to everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in the County of Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good clubhouse for the players and seats for the onlookers. The village team plays there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings they practice while the light lasts. Yet now after these 70 years a judge of the High Court has ordered that they must not play anymore. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket, but now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket field. No doubt the open space was a selling point. Now he complains that when a batsman hits a six the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at weekends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the judge to stop the cricket being played. And the judge, much against his will, has felt that he must order the cricket to be stopped: with the consequence, I suppose, that the Lintz Cricket Club will disappear. The cricket ground will be turned to some other use. I expect for houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground."
The description of the facts certainly sets the tone doesn't it? I wonder if Denning wrote the intro last, or if he was like... "right! this newcomer isn't going to spoil the ancient joy of cricket. Now I'll go find some reasons why..."
 

MoonlightSonata

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haha reading those other intros, he's quite the narrator..

"Again, we are not told the actual words, but it is not difficult to guess. I expect it was an emphatic version of 'You be off'."
 
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Frigid

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Originally posted by Lazarus
The question would have helped, but I'll do what I can. ;)
:D :D :D THANKS LAZ! *yay*

umm sorry for omitting the question - it was "Discuss the contractual issues and statutory consumer provisions which are relevant to the above scenario."
(therefore no torts my tutor said).

but yes i should find my case citations :)

(business) law exam tomolo :D *happy* :)

btw there are some funky moot questions out in the ALSA Conference website...
 

babydoll_

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I did workies at a lawyer in yr 10, and it's put me off ever becoming a solicitor or barrister
 
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Frigid

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hahaha... but then you'll steal all my fire minai... you and your sexy attention-magnetising self. ;)
 

Ragerunner

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When laz hits the age 70, as if he won't be explaining how the HSC still works.

And by that time, he would of gotten the Board of Studies to reveal every possible information imaginable :)

Heck, Laz will be running the HSC system by then!
 

truly-in-bliss

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hahaha well i am getting desperate to get into law... though cant get much studying done cuz of the baby........

a warning to all those teenage gals who wants a baby......its far more work than u think............ the night before my acct exam... the baby woke me up 4 times........ and i had to wipe her bottom and change her nappies cuz she was pooing and peeing...
 

truly-in-bliss

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i cant... who is gonna look after mum and baby then???... she is in bed half of the times..... so she cant move around wash nappies/get the bottle etc...........

so the lesson is... tim dont go around impregnanting random gals....................aniwayz i am off to uni to borrow some books.... ciao :p
 

babydoll_

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Originally posted by Minai
but can I come too?
of course; you can be teh minister
Originally posted by Ragerunner
When laz hits the age 70, as if he won't be explaining how the HSC still works.

And by that time, he would of gotten the Board of Studies to reveal every possible information imaginable :)

Heck, Laz will be running the HSC system by then!
yeah

head of Board of Studies, Dr. James King (cuz by then he'll have like 10 PhDs or something)
Originally posted by Asquithian
oh gawd its not that bad...if you a dull boy like me it fits perfectly!
...nonono... the solicitor i was working with was working on a terrible case... i wont divulge details but it was really.. off.. and i never wanted to touch law again after that
 

Suvat

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Originally posted by Asquithian
are u somehow suggesting im the father of this child?
I don't see how anyone could come up with such a suggestion unless...
 

Lexicographer

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Originally posted by truly-in-bliss
i cant... who is gonna look after mum and baby then???... she is in bed half of the times..... so she cant move around wash nappies/get the bottle etc...........

so the lesson is... tim dont go around impregnanting random gals....................aniwayz i am off to uni to borrow some books.... ciao :p
Hey have you asked your course co-ordinator about special consideration of your situation? There may be something they can do to take this into account... sure there are people with their own kids etc, but you never know... :)
 

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