LLB332 Commercial Law Unit Guide 2021 PDF

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LLB332 Commercial Law

Unit Information and Learning Guide Semester 1, 2021

This information should be read in conjunction with the online learning material, which can be found on your MyUnits page.

Lecturer George Syrota Murdoch Law School [email protected]

Unit coordinator Kirstein Fentiman Arts, Business, Law and Social Sciences [email protected]

© Published by Murdoch University, Perth, Western Australia, 2021 This publication is copyright. Except as permitted by the Copyright Act no part of it may in any form or by any electronic, mechanical, photocopying, recording or any other means be reproduced, stored in a retrieval system or be broadcast or transmitted without the prior written permission of the publisher.

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CONTENTS

UNIT INFORMATION Information about the unit Contact details How to study this unit Resources for the unit Study guide Assessment Academic integrity Determination of final grade

4&5 6 7 8-10 11-12 13-17 18 19

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INFORMATION ABOUT THE UNIT

Unit Overview What do we mean by ‘commercial law’? There is no strict definition of the term. Generally, commercial law is seen as that part of the law regulating ‘transactions in which both parties deal with each other in the course of business’ (per Sealy and Hooley, Text and Materials in Commercial Law, Butterworths, 1994, p 3). In many respects, commercial law is a specialised form of contract law. It regulates the sale of goods and services, whether between businesses or between a business and a consumer. Other examples of commercial law include the law of insurance, negotiable instruments, corporations law, partnerships, agency, corporate finance, competition and bailment. Due to time constraints, we cannot cover all of these topics in this unit. Besides, some of these transactions are specialised areas of study, which are offered as separate electives. In this unit, we will be examining the law relating to the sale and supply of goods; consumer protection; fair trading; and also, time permitting, agency. In recent years, consumer protection law in Australia has undergone significant reforms. The first major reform was the enactment by the Federal Parliament in 2009 of the National Consumer Credit Protection Act 2009 (Cth), and the Personal Property Securities Act 2009 (Cth). Both of these statutes are outside the scope of this unit, except that we cover aspects of the seconc statute in so far as it relates to transfer of title in a contract for the sale of goods. The second major reform occurred in two phases. The first phase saw the enactment of the Trade Practices Amendment (Australian Consumer Law) Act (No 1) 2010 (Cth), which introduced new laws regarding unfair terms and consumer protection. The second phase reforms were implemented by the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth). Those reforms included changing the name of the Trade Practices Act 1974 to the Competition and Consumer Act 2010 (Cth), and making provision for uniform application of the Australian Consumer Law (‘ACL’)1. This unit will analyse the provisions of the ACL regulating misleading or deceptive conduct, unconscionable conduct, unfair contract terms, unfair trading practices and consumer guarantees.

Prerequisites Successful completion of all Part 1 units in the LLB and completion of LLB260/LAW260 Contract Law.

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ACL is in Schedule 2 of Volume 3 of the Competition and Consumer Protection Act 2010 (Cth) (‘CCA’).

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AIMS AND OBJECTIVES

Unit Aims The broad aims of this unit are to: 1.

introduce you to the legal issues raised by transactions that occur in the course of business;

2.

introduce you to consumer protection and regulation against unfair trading practices under the Australian Consumer Law;

3.

encourage the continuing development in students of a critical approach to the law, especially in the field of commercial law; and

4.

provide a foundation for students who wish to study other specialised areas of commercial law, with a view to practise in the commercial law field.

Learning Outcomes On successful completion of the unit, you should be able to: 1.

identify and analyse legal issues that arise in consumer and commercial transactions, especially in the areas of law covered in the unit;

2.

apply sec 18 (and related provisions covered in the unit) of the ACL to consumer and commercial transactions;

3.

identify and apply the appropriate legal remedies in commercial and consumer transactions, especially in relation to contracts for the sale and supply of goods and services; and

4.

appreciate the general policy underpinning the ACL.

Graduate Attributes This unit will contribute to the development of the following Graduate Attributes: see http://our.murdoch.edu.au/Educational-Development/Preparing-toteach/Graduate-attributes/ 1. 2. 3. 4.

Communication Critical and creative thinking Independent and lifelong learning In-depth knowledge of a field of study

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Student Consultation Times (with George Syrota): Every Thursday, during teaching weeks, from 10.30 am to 11.30 am; otherwise by appointment. If you need to contact the unit coordinator, please email to set up an appointment time ([email protected])

Technical Help For technical difficulties with LMS or accessing recorded lectures contact the student Helpdesk either by telephoning 9360 2000, or go to: http://our.murdoch.edu.au/IT/Facilities-and-services/IT-ServiceDesk/.

Administrative contact details If you have any urgent queries and cannot get in contact with me, please contact the MyAdvice team [email protected].

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HOW TO STUDY THIS UNIT Learning Activities •

One two (2) hour lecture each week

•

EITHER Thursday, 8.30 am – 10.30 am Room 465.1.102 (Law Building)

•

OR Friday, 1.30 pm – 3.30 pm Room 490.2.019 (Amenities – Teaching Space)

You should attend either the Thursday morning or the Friday afternoon lecture. There are no tutorials; however, workshop questions will posted on LMS and discussed in the lectures.

Time commitment As this is a three (3) credit point unit, we expect you to spend on average 10 hours per week for the total number of weeks of the Semester 1 teaching period (ie, 150 hours overall) working on this unit. Attendance requirements Although attendance at lectures is not compulsory, poor attendance often results in poor overall performance. To reinforce learning outcomes, workshop questions will be discussed at the end of most lectures – student attendance and participation is strongly encouraged. Echo 360 - Lecture Capture System (LCS) Lectures will be recorded by the Echo 360 (Lecture Capture System (LCS)). Sometimes circumstances may result in students having no alternative but to miss a lecture. There is no guarantee that occasional technical problems with recording will not occur (eg, the recorder does not work or fails to pick up sound clearly, or it is inadvertently not switched on or otherwise fails midlecture). The Unit Coordinator does not control the process of actually recording the lectures. The Unit Coordinator accepts NO responsibility for providing students with any lecture-related materials if LCS fails, if students miss a lecture or are unable for any reason to access a recorded lecture. Preparation for Lectures Prescribed reading will be set for each lecture. To extract the most from lectures, you should do the reading BEFORE the class. Most of the cases referred to are extracted in the prescribed textbook i.e. S G Corones, The Australian Consumer Law (Lawbook Co, 4th ed, 2019) or in one of the other recommended textbooks (see ‘Resources for the Unit’ on page 9). The fact that a case is in the prescribed textbook does not necessarily mean that it is more important than those that are not. In class, the lecturer may refer to additional readings and cases. In addition, through your own reading and research, you will come across other very good and informative authorities. Remember that it is not possible for lectures to cover in detail all topics (including cases and statutory provisions) listed in the study guide. To gain an in-depth understanding of the topics, students must read beyond their lecture notes and PowerPoint slides.

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Study Schedule Please refer to the Study Guide below – a weekly summary of the topics to be covered in the unit is set out to help you to plan your study over the semester. This should be read in conjunction with the Reading Guide, which is available on LMS.

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RESOURCES FOR THE UNIT Prescribed Textbook: • S G Corones, The Australian Consumer Law (Lawbook Co, 4th ed, 2019)

Textbooks

Please purchase the prescribed text, which is on sale in the university bookshop or direct from the publisher. Check with the bookshop and/or publisher for any applicable discount. Prescribed Legislation: •

Miller’s Australian Competition and Consumer Law Annotated (Lawbook Co, 42nd ed, 2020) (‘Miller’)

Miller is available online from WestlawAU through the Law Library. Alternatively, click on the link to the Competition and Consumer Act 2010 (Cth) below: https://www.legislation.gov.au/Series/C2004A00109 Please note that only a hard-copy format of the prescribed textbook and legislation is permitted for the open-book examination (no electronic materials). Recommended Textbooks: •

P Clarke & S Erbacher, Australian Consumer Law: Commentary and Materials (6th ed, 2018)

•

Gail Pearson et al, Commercial Law: Commentary and Materials (Lawbook Co, 4th ed, 2019)

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Clive Turner & John Trone, Australian Commercial Law (Lawbook Co, 32nd ed, 2019)

•

Alex Bruce, Consumer Protection Law in Australia (LexisNexis, 3rd ed, 2019 )

•

Samantha Traves, Commercial Law (LexisNexis, 4 ed, 2016)

th

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There are a number of books available either on the specific topics that we will be covering, or more general texts, which give a good overview of various topics. Copies of all these books are in the Law Library. These include the following:

GENERAL

Other references

Clive Turner and John Trone, Australian Commercial Law (Thomson Reuters, 32nd ed, 2019) SALE OF GOODS L B C Sutton, Sales and Consumer Law (Thomson Reuters, 4th ed, 1995) (e-book, full-text online available from Law Library) Alan Tyree, Sale of Goods (Butterworths, 1997) AGENCY G H L Fridman, The Law of Agency (Butterworths, 7th ed, 1996) B S Markesinis and R J C Munday, An Outline of the Law of Agency (Butterworths, 4th ed, 1998) Simon Fisher, Agency Law (Butterworths, 2000) G E Dal Pont, Law of Agency (LexisNexis, 3rd ed, 2013) CONSUMER PROTECTION Colin Lockhart, The Law of Misleading or Deceptive Conduct (LexisNexis, 5th ed, 2018) Lynden Griggs, Eileen Webb and Aviva Freilich, Consumer Protection Law (Oxford University Press, 2008) Justin Malbon and Luke Nottage (eds), Consumer Law and Policy in Australia and New Zealand (Federation Press, 2013)

Online resources

Online resources and Echo 360 (Lecture Capture System (LCS) ) recordings can be accessed from your MyUnits page. Lecture materials and other learning resources are uploaded onto LMS.

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Available on LMS.

3 Link

available on LMS.

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STUDY GUIDE Week beginning

Topic

Week 1

Lecture 1

22 Feb

• • •

Week 2 1 Mar

Week 3 8 Mar

Week 4 15 Mar

Week 5 22 Mar

Week 6 29 Mar

Week 7

Introduction Misleading or deceptive conduct: section 18 ACL Elements of section 18 ACL

Lecture 2 • Misleading or deceptive conduct: section 18 ACL • Elements of section 18 ACL (cont’d) • Research Techniques (Ms Debra Smith, Law Librarian) Lecture 3 • Advertising • Specific unfair practices • Unconscionable conduct Lecture 4 • Advertising (cont’d) • Specific unfair practices (cont’d) • Unconscionable conduct (cont’d) Lecture 5 • ACL liability and remedies • Introduction to SOGA – formalities – definitions – ‘consumer’ under the ACL • Terms of a contract of sale of goods – implied terms – ACL consumer guarantees Lecture 6 • ACL liability and remedies (cont’d) • Introduction to SOGA – formalities – definitions – ‘consumer’ under the ACL (cont’d) • Terms of a contract of sale of goods – implied terms under SOGA – ACL consumer guarantees (cont’d)

Independent Study Week

Assignment on LMS

available

No Classes

5 Apr

Week 8 12 Apr

Week 9 19 Apr

Lecture 7 • Terms of a contract of sale of goods – implied terms under SOGA and ACL guarantees (cont’d) • Exclusion clauses • Action against manufacturers Lecture 8 • Terms of a contract of sale of goods – implied terms under SOGA and ACL guarantees (cont’d)

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Week 10 26 Apr Lecture 9 • Passing of property – passing of title by non-owner • Performance of contract – risk – frustration of contract • Remedies of buyer – seller – consumer

Week 11 3 May

Week 12

Assignment due Lecture 10 Wednesday, 5 May 2021 • Passing of property – passing of title by non-owner (cont’d) • Performance of contract – risk – frustration of contract (cont’d) at 12 pm • Remedies of buyer – seller – consumer (cont’d)

10 May

Lecture 11 • Agency – undisclosed agency – termination of agency

Week 13

Lecture 12

17 May

Week 14

•

Revision

Independent Study Week

No Classes

24 May

Week 15

Exam Revision Week

No Classes

31 May Weeks 16 & 17

Exam period

Refer to exam timetable

NOTE: Refer to the Reading Guide on LMS for more details on the topics covered.

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ASSESSMENT Assessment for this unit is conducted in accordance with the Assessment Policy. See: http://our.murdoch.edu.au/Educational-technologies/What-you-need-to-know/ Students can access this policy, along with other useful information pertaining to matters such as the grading scheme, assessment roles and responsibilities, academic integrity, non-discriminatory language, student appeals, student complaints and conscientious objection in relation to teaching and assessment, at: http://our.murdoch.edu.au/Educational-technologies/Expectations-responsibilities/ Schedule of Assessment Items Students will be assessed on the basis of: Assessment Item Assignment (problem-type)

Description

Essay format 2,000 word limit (excluding footnotes)

Value

50%

Due

Learning Outcomes

Wednesday, May 5th 2021 at 12 1, 2, 3 & 4 pm – SUBMIT ON LMS

Refer to the exam timetable Examination (problem-type)

Open-book exam

50%

1, 2 & 3

Assignment The assignment will be available on LMS in the week beginning 29 March (Week 6). The due date for submission of the assignment is 12 pm on Wednesday, 5 May 2021 (Week 11). Your assignment will be returned to you no later than 3 weeks from the submission date. Weighting contribution to overall mark: This Assignment is worth 50% of your overall mark for this unit.

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Word count/limit: 2,000 words (excluding footnotes). Students must state the word count for their Assignment – this should be indicated on the cover sheet or front page of their Assignment. A bibliography is NOT necessary. Footnotes: footnotes should be used to provide authority for a proposition or acknowledge a source that is relevant to an argument (e.g. case law and legislation). Footnotes should NOT be used to circumvent the word count/limit. Penalties for exceeding the word count/limit: assignments that exceed the prescribed word limit will be marked; however, the total marks awarded may be reduced by one (1) mark for every 50 words or part thereof that the assignment exceeds the word limit. Formatting requirements: The line spacing should be no less than 1.5 lines. The font should be Arial and no smaller than 11 point (the font and spacing requirements do not apply to footnotes). There should be at least a 2 cm margin on the top, bottom, left and right hand side of each page. Citation: You must follow the style of citation found in Melbourne University Law Review, Australian Guide To Legal Citation, 4th ed (Melbourne University Law Review, 2018), available on the Web at https://law.unimelb.edu.au/mulr/aglc and also in the subject guide for law available on the Murdoch library home page at: http://libguides.murdoch.edu.au/law. Assessment criteria: the assessment criteria for the Assignment will be set out on the Assignment itself, when it is posted on LMS. PLAGIARISM-CHECKING SOFTWARE Your Lecturer may use software called Urkund when viewing work that you submit. Urkund is a pattern-matching system designed to compare work submitted by students with other sources from the internet, journals/periodicals, and previous submissions. Its primary purpose is to detect any submitted work that is not original and provide a thorough comparison between the submitted document and the original sources. More information about how to avoid plagiarism is contained within the Murdoch Academic Passport (MAP) unit https://moodleprod.murdoch.edu.au/course/view.php?id=2684 University policies on academic integrity can be accessed here: http://our.murdoch.edu.au/Educational-technologies/Whatyou-need-to-know/ Submission of Assignment: Assignments MUST be submitted electronically – using the assignment tool in LMS – on or before the due date. Microsoft Word file. Do NOT submit as PDF or any other format. To identify your assignment clearly, please use a filename which follows the convention: Unit Code, your last name and your Student Number e.g. LLB332Mackay12345678.

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For electronic submission, go to http://goto.murdoch.edu.au/LMSSupportStudents and you will see a list of the steps you need to follow. For your own protection, always ensure that you keep a copy of submitted work in hard-copy and electronic format and note the date and time when you submitted the work for assessment. Extensions: Exceptional circumstances sometimes arise unexpectedly justifying an extension of the Assignment deadline. An application should be made to the Unit Coordinator. The Unit Coordinator is not obliged to grant extensions but will consider sympathetically all reasonable requests. NOTE: the following are NOT exceptional circumstances: (a) computer/printer/modem failure (b) car failure (c) minor illness (d) heavy workload (either at university or elsewhere) (e) deliberate actions within one’s control, such as legal actions against another person or a booked holiday. This list is not exhaustive. NOTE: Claims based on ‘exceptional circumstances’ must be supported by documentary evidence. If a problem of this sort does surface, you should apply immediately, and before the deadline expires to the Unit Coordinator by email ([email protected]). Please attach documentary evidence to support your application. The Unit Coordinator will consider your application and you will be advised of the outcome as soon as possible. In the meantime you must assume that the original deadline still applies to you. If you seek an extension on medical grounds, you must attach a medical certificate. Documentary evidence is also usually required to support req...