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Chapter 5 & 6

Legal Studies: Chapter 5 and 6
1. Difference between Civil and Criminal Law
Civil Law
 Attempts to protect the rights and responsibilities of individuals in
their behaviour and interactions with others.
 If freedom is breached by another party, the aggrieved person has the
right to request compensation
Criminal Law
 Attempts to balance the rights of individuals to freedom from
interference with person or property and society’s need for order
2. Resolving Civil Disputes
 Discussion
 Having a discussion with the person or business with which you
are having a dispute with
 Letter Demand
 Formal request from one party to another asking them to accept
your claim that money is owned to you
 Must include essentials like amount owned, date, etc
3. Resolving Civil Disputes (ADR)
Setting a dispute without having to go through more formal process such as
court hearing. ADR can be court or tribunal based. QLD gov has free ADR
centres that provide services at timely, cost efficient and equitable manner
ADR Methods:
 Assisted negotiation
 You and solicitor meet up with the other party and their
solicitors to discuss the issue
 Mediation
 Neutral 3rd party introduced as mediator to resolve disputes
 Mediator encourages parties to make a mutual agreement
 Process is voluntary and usually not legally binding
Legal Studies: Chapter 5 and 6
 Conciliation
 Conciliators often offer advice and are usually experts
 May assist in drafting settlement agreement
 Case Appraisal
 Independent person assesses and makes decision on case
 Decision is put into writing
 If one party disagrees with agreement, they might be elected to
go to trial
 Arbitration
 Independent person (arbitrator) acts as judge
 Arbitrator listens to both sides and makes decision that is legally
4. Industry Ombudsman
 Members of the public can make direct complaints against
government decisions
5. Tribunals
 Civil tribunals – resolving private disputes
 Administrative tribunals – concerned executive actions of the
 Person who makes decision is legally trained
 Less formal and expensive that a court
 Example: QCAT
 Tribunal is inexpensive and resolves disputes for up to $25,000
 Help solve disputes
7. Class actions
 A lawsuit initiated by a single person on behalf of a group of people
who are seeking financial compensation for wrongdoing
 At least 7 members
Legal Studies: Chapter 5 and 6
8. Elements of a Contract
Agreement - > Offer + Acceptance
 Agreement
 Offer (oral/written)made to one party that is accepted by the
other party, then an agreement has been made
 Intention
 Is the contract intended to be legally binding and not merely a
social agreement?
 Consideration
 Exchanged values between parties which is usually money for
something of value
 Necessary element that makes contract legally binding
 Capacity
 A person has to be legally capable and properly understand their
obligations under the contract
 Not able to enter contract -> impaired mental capacity,
intoxicated ,minor 18+, bankrupts, non-Australians investing in
 Formalities
 Some contracts must be in writing
 This includes property, car purchase, door-to-door sales
9. Terms of a contract
Express terms
 Terms that have been specifically mentioned and agreed on by both
parties at the time the contract us made. Can be oral or writing
Implied terms
 Terms that have not been discussed or written that can form part of a
 “Goes without saying”
Legal Studies: Chapter 5 and 6
Performance and breach
A contract can end when both parties have fulfilled their contractual
obligations or if one party breaches contract terms where the contract can
be terminated.
Defences for breach of contract
 Misrepresentation
 False statement
 Can be compensated by innocent party
 Can be an exiting or past fact
o Types of Misrepresentation
 Innocent
 False Statement made by one party to another who believes it to
be true
 Might not be able to claim damages
 Negligent
 Statement made by party but didn’t check if fact is true
 Fraud
 Party makes false statement knowing its true
 Innocent party may seek damages
 Mistakes
 When parties make mistakes in relation to the contract, law or
important facts
 Undue influence
 Enters into contract under pressure
 Unconscionable conduct
 Taking unfair advantage
 Caveat Emptor “Buyer beware”
 Duress
 Threats or acts of violence to enter into a contract
 Illegal contracts
 Non enforceable
Legal Studies: Chapter 5 and 6
 Innocent party may be entitled to a remedy e.g. compensation (money)
 Punitive damages
 Extra damages considered as punishment
 Liquidated damages
 Sets a sum of money payable as damages for the other party’s
 Equitable remedy
 Court judgment to complete contract
Enforcements and Remedies: Legislation
The fair-trading act 1989 (QLD) Office enforcement and remedies for
breaches and suspected breaches of the national consumer law through the
 Official warnings
 Given for minor breaches when the wrongdoer did not act
dishonestly and cooperate with investigation
 Infringement notices
 Civil penalty fine issued for less serious types of breaches
 Court injunction
 Issued to a business to force it to stop engaging in actions that
breach the ACL
 Enforceable undertakings
 Person informs a consumer agency that they may have
breached the ACL and agree not to repeat the action.
Undertakings are court enforceable and can be publicised
 Public warnings and naming
 Evidence of deliberate and extensive misconduct are published
to media
 Compensation
 granted to consumers affected by breach of the ACL for loss or
Legal Studies: Chapter 5 and 6
 Disqualification
 Can occur to a person managing a Corporation
 Prosecution or tribunal action
 For serious breaches and constant reoffending