Law Of Negligence And Limitation Answers

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Table of Contents

Part A- Case study analysis.

Introduction.

IRAC analysis to address the issue.

Conclusion.

Part B- Pleading and ongoing process draft

Reference list

Civil Procedure Law - Part A

Introduction

The safeguarding of the interests of consumers and providence of protection to the consumers from fraudulent commercial activities is one of the primary focuses of the civil law of a nation (Howells & Ramsay, 2018). The judiciary system of Australia is also associated with the same and has its keen interest to safeguard the consumers from being cheated and from breach of contract. In this study, the analysis of the case of Clark Kant will be done in order to identify the potentiality of Australian legal system so as to provide protection to the consumers of the nation.

IRAC analysis to address the issue

Issue

As per the provided case study of Clark, an episode of fraudulent commercial activity has conspicuously been noticed. Clark and OzeBroker have signed a formal contract about the delivery of a Romeo Giulia Spider car and OzeBroker has acted as an agent and one of the vendors of the delivery of the car. Clark being the consumer has followed the norms of the contract and has made payments. The total cost of the car has been estimated at about 120,000 Australian dollars including door to door shipment. As per the viewpoint of McKendrick & Liu (2015), in a business or a formal contract the entire value of the money of the transaction is highly important. In this context, Poole (2016) has added that, the date up to which the contract remains valid should also be prominently mentioned in the contract. In this case also, both the factor has been maintained and the ultimate period of the delivery of the deliverable, that is, the car has been mentioned as 1April 2020. Hence, from this angle, it can be analysed that no ambiguity has been noticed in the contract. However, both the vendor and the company have not delivered the item till the ultimate date mentioned at the contract paper. In spite of the payment to OzeBroker, the vendor of Alfa Romeo Giulia Spider Roadster and AFES (Escrow service of Australia), the consumer have not got the delivery of the product. This is the primary issue identified in the case study. The additional issue is that the consumer of the case study, that is, Clark has his intention to recover the money that he paid to AFES and Ozebroke as he has not got the delivery of the car. As per the viewpoint of Roberts (2017), a contract or a breach of the same should be analysed from the terms and conditions that have been mentioned in the contract paper. However, in this contract, the fact of revert backing of the payment has not been mentioned. Hence, from this angle, it can be mentioned that the recovery of 120,000 dollar for Clark is definitely an issue.

Relevant law

The aspect of implementation of law is also quite critical for this case. The analysis of the case study has informed that OzeBroker is the agent of the company Chimera Enterprises, which is a commercial unit of Sumerya. Clark has researched about the consumer protection law of Sumerya and it has been identified that there is no such well-structured corporation or company law. As per the viewpoint of Tripodi (2015), the united nation has developed legal standards regarding international goods selling and each aspect has been prominently mentioned in the UN CISG. It has been identified that Sumerya is not a signatory of CISG. Hence, from this angle, it should be very difficult to get justice, while preceding a case against Chimera Enterprises as per the Sumeryan Judiciary.

However, as per the legal system of Australia, the application of different acts can be done, in which consumer’s right related act and contract law is prior to be mentioned. ‘Competition and consumer Act-2010’ (CCA) has been developed with the prior vision to protect Australian and their rights as a consumer. In part 1 section 2 of CCA, the objective of the act has clearly been mentioned, which includes the maximisation of competition and fair trading in Australia by safeguarding the right and interest of the consumers (Federal Register of Legislation, 2011). However, this act should be applicable to the commonwealth and the territories under commonwealth authority.

Additionally, the law regarding the practice of fair trade has also been focused by the Australian government. As per the words of Crook (2016), ‘Trade practice act’ has been passed in the year 1976 with the primary intention to manage the activity associated with fair trading. Part-V of the mentioned act has been dedicated to the protection of the consumers of Australia. The part -V division-1 of the act is directly associated with different unfair activities tagged with a commercial transaction and these activities have been defined prominently to make the consumers aware about the fraudulent commercial activities (Federal Register of Legislation, 2010). Section-56 of part-V has mentioned bait advertisement and has defined it as a crime in the ground of fraudulent activity. On the other hand, Section 58 of part V of the act has stated about the payment acceptance without the delivery or supply of the order (Paull & Hennig, 2018). This is one of the most prevalent crimes that have been identified under the fraudulent commercial activities. All the factors have been implemented to minimise the fraudulent commercial activities in the Australian market.

Apply to the fact

CCA-2010 is directly associated with the protection and safeguarding of the interest of the Australian consumers. Clark has been cheated by the vendor concern of Alfa Romeo cars. Hence, from this angle, it can be mentioned that, the interest of the consumers has not been safeguarded and breach of contract has happened. The mentioned act is applicable in this case. However, in the previous section it has been mentioned that this law is only applicable for the Australian market and for Australian companies. Hence, from this angle, it can be commented that this will not be applicable for the company of Sumerya. However, OzeBroker is acting in the land of Australia and has performed fraudulent activity in the land of Australia. Moreover, the breach of contract has also been done in this context. Hence, from this angle, it can be mentioned that CCA-2010 is definitely applicable over the case filed by Clark against OzeBroker.

On the other hand, Section 58 of part V of Fair Trade Act-1976 is dedicated to the minimisation of the issues like the payment acceptance with no delivery of the deliverable (Federal Register of Legislation, 2010). This is directly aligned with the case of Clark as OzeBroker has not delivered the car within 1 April 2020 as per the words of the contract paper. However, they have accepted payment.

Conclusion

At the conclusion section, it can be mentioned that as per the legal system of Australia, both the fair trade act and CCA-2010 is applicable in the case of Clark and Clark should get justice. The refund of the payment money should definitely be done along with the penalty charge for harassment and breach of written contract. As per the official website of ACC, the aspect of repair, refund and replace is tagged with it (accc, 2020). Clark has to file a case in the Australian consumer court commonly known as ACCC.

Civil Procedure Law - Part B

Claim for the payment money of 102,000 AUD back by Clark Kant from AFES

1. Cause of Action/Claim/ Relief

• The plaintiff of this case is Clark Kant, a 19 years old man living in South Australia and the defendant is AFES.
• The case has been filed against the AFES regarding a misdeed in the process of payment clearance.
• Without the concert or confirmation of the payment maker, AFES is not able to release a payment.
• However, as per the case study of Clark, AFES has released the payment money of valuation 102,000 dollars.
• The plaintiff of the case has communicated to AFES and he got to know that the money of mentioned valuation has been released without the confirmation of the Plaintiff.
• As per the rule of escrow payment, the payment maker has to confirm against a payment prior to the release of the money
• However, in this case, the rule has been infringed.
• An act of negligence has been noticed from the side of defendant
• The plaintiff claims this money back along with penalty for harassment
• The plaintiff should also claim the lawyer fee and the case fee of the entire trial process.

2. Standing

• The duty of AFES authority is to promote safe payment method and this has not happened for Clark. The plaintiff of this case has not got delivery of the car within the period mentioned in the contract paper. However, the payment has been released by AAFES without the consent of Clark. The loss odf money has happened to the plaintiff due to the negligence in the duty of AFES payment service. Hence, Clark has full right to claim the money back.

3. Capacity

• The plaintiff has communicated with the duty manager of AFES to get the documents of payment. It has been mentioned that the documents regarding the payment can be provided. However, the organisation should not be able to produce further details regarding the release of the payment. As per the viewpoint of Syuib (2020), each and every minute step of a payment procedure should be documented in order to make the issue clear to the consumer. The infringement in the rule by AFES has breached the aspect of consumer protection. In this context, a case can be filed against the AFES and Clark should claim the money back along with the compensation for harassment.

4. Limitation period: There should be a limitation period regarding the payment of the cliamd money. It should be within 2 months. A contract should be signed regarding the payment of all the fees particularly with date and period. If AFES could not pay the entire amount, then it will be a breach of contract and another fresh case should be filed by the plaintiff.

5. Preliminary discovery

• The implementation of common law can be done in this context.
• Clark may apply S37 CCA for preliminary discovery against AFES to claim the money back
• As per Competition and consumer Act-2010, the interest of consumers should be safeguarded and all transactions should be fairly conducted (Federal Register of Legislation, 2011).
• The safety aspect of AFES has not been properly maintained. This has invoked major financial loss and burden to the plaintiff. The issue of negligence from the part of the defendant has been noticed. This is one of the major issues in the eye of law of Australian jurisdiction. The aspect of negligence is considered by the consumer court of Australia commonly known as ACCC. Hence, the plaintiff should clam compensation in the ground of negligence and lack of liability.

6. Jurisdiction

• Law of negligence and limitation of liability act was passed in the year 2008 and has been compiled in 2016 (Federal Register of Legislation, 2016).
• Section 102 of NL act is dedicated to contributory negligence. It has been mentioned that consumers suffer due to the partial negligence of the defender and the partial self- negligence.
• In this case, this factor is applicable, as the plaintiff has not investigated in the meantime regarding the delivery and payment aspect. This has triggered major issues regarding undocumented payment and payment without the concept of the plaintiff. As per Administrative appeal tribunal of 1975, the plaintiff should file a case regarding the negligence and lack of liability of AFES.
• S37 CCA is tagged with the right of consumer and from this angle, under this section, the defendant should be charged against the infringement of the safety of consumer.

Note: The aspect of reimbursement has also been tagged with the NL act of 2008. Hence, from this angle, the plaintiff can claim the money that has been paid without his concert to the third party.

The plaintiff should get back the payment money along with the compensation for the issue harassment and loss of money.

The case can be filed in the compensatory ground as the consumer’s interest has not been properly protected by the activity of AFES. Moreover, plaintiffs have to face harassment regarding the investigation of payment through Escrow. This has created stress over him which he does not deserve. Hence, compensation should be claimed against this issue from AFES and this should be paid with the payment money.

On the other hand, the plaintiff has to pay the fee of a lawyer in order to conduct this case. Moreover, the court fee is also associated with the same. Hence, the plaintiff should also claim the lawyer fee and the case fee of the entire trial process.

7. Forum

Consumer forum of Australia, ACCC should be the best option to file this case by Clark against AFES.

8. Substitutive service

• Substitutive service is applicable under rule 6.10 MCR
• The draft of the complaint should be posted to the front desk of the local office of AFES
• Additionally, an electronic company of the same should be end to the official e-mail address of the defendant company.
• An order of court about substitutive service should also be posted at the official social media site. It may be twitter of Facebook of the defendant company

Alternative approach to service

• Direct negotiation can be done with AFES outside the court
• It AFES returns back the payment money of 120,000 dollars without any opposition, then no case should be filed
• No compensation money should also be claimed

Reference List for Law of Negligence and Limitation of Liability Act

accc, (2020). Repair, replace, refund. https://www.accc.gov.au/consumers/consumer-rights-guarantees/repair-replace-refund

Crook, A. (2016). From Protection to Competition—The Politics of Trade Practices Reform in Australia. Australian Journal of Politics & History, 62(1), 151-152. https://doi.org/10.1111/ajph.12225

Federal Register of Legislation, (2010). Trade Practices Act 1974. https://www.legislation.gov.au/Details/C2010C00331

Federal Register of Legislation, (2011). Competition and Consumer Act 2010. https://www.legislation.gov.au/Details/C2011C00003

Federal Register of Legislation, (2016). Law of negligence and limitation of liability Act 2008. https://www.legislation.gov.au/Details/C2016Q00058/Html/Text#_Toc197935308

Howells, G., & Ramsay, I. (Eds.). (2018). Handbook of research on international consumer law. Edward Elgar Publishing. https://books.google.com/books?hl=en&lr=&id=codlDwAAQBAJ&oi=fnd&pg=PR1&dq=consumer+protection+law+in+australia&ots=-_35DZ-_Ei&sig=aieHiflY9RHhNWxyFA2UmAhDgBA

McKendrick, E., & Liu, Q. (2015). Contract Law: Australian Edition. Macmillan International Higher Education. https://books.google.com/books?hl=en&lr=&id=DiGnCgAAQBAJ&oi=fnd&pg=PP1&dq=contract+law+australia&ots=iC3IdYXU-B&sig=rorLMx2PdA_894XYXCIPH3m5zVk

Paull, J., & Hennig, B. (2018). Maps of Organic Agriculture in Australia. Journal of Organics, 5(1), 29-39. https://orgprints.org/34291/

Poole, J. (2016). Textbook on contract law. London: Oxford University Press. https://books.google.com/books?hl=en&lr=&id=cOQmDAAAQBAJ&oi=fnd&pg=PP1&dq=contract+law+australia&ots=SH7PSh3IIC&sig=gAK80VfGOnvsljqMA4OPSRAmmvo

Roberts, M. (2017). Variation contracts in Australia and New Zealand: whither consideration?. Oxford University Commonwealth Law Journal, 17(2), 238-264. https://doi.org/10.1080/14729342.2017.1360604

Syuib, M. (2020). The Protection of Online Shopping Consumer Rights in Australia. Jurnal Justisia: Jurnal Ilmu Hukum, Perundang-undangan dan Pranata Sosial, 5(1), 13-23. https://www.jurnal.ar-raniry.ac.id/index.php/Justisia/article/view/7268

Tripodi, L. (2015). Towards a New CISG: The Prospective Convention on the International Sale of Goods and Services. Brill. https://books.google.com/books?hl=en&lr=&id=PSxzCwAAQBAJ&oi=fnd&pg=PP3&dq=Convention+on+the+International+Sale+of+Goods+(CISG)&ots=IwfoEIxHwR&sig=IlSM1AKmid3pucpYjz2dBC3g6MQ

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