Legal reasoning for BLB110 Australian Legal System in Context

Legal reasoning for BLB1101 Australian Legal System in Context

The process of logical legal reasoning in a HIRAC-style approach.

The process:

First you need to understand the law relevant to the problem. For ALSICs purposes, students are presented with relevant law, extracted from the primary sources, and instructed ONLY to use the law given there.

Read and actively re-read the legislation give meaning to it by breaking it down into its elements:

What is the purpose of the statutory provision what type of behaviour/s does it aim to regulate?

Does the statutory provision prohibit certain conduct, or mandate 9require) certain conduct; or does the section do something different (eg purely definitional sections) interpret it

What are the key elements/criteria of the section?

Are there any ambiguities within the section/s? What meaning might seem applicable to words/phrases used in the section if you were taking a literal/plain English meaning; what meaning might best assist the purpose of the section?

Actively read also the case extract/s

Make a note of the dates of the case/s and whether that means the case interprets the statute, or has the statute amended the former common law position,

was decided before/after

summarise the facts of the case

make notes summarising the finding and logic of the different judges who decided the case

extract the decision and the ratio decidendi of the case

also identify any obiter that might be persuasive if court was faced by a case with different facts

reflect on the ways in which the court decision interacts with the law from the statute

about which judges find the decision of the case and the ratio decidendi.

Build you understanding further. Inventing short hypothetical scenarios that would arguably involve the section. The more scenarios you invent and test out by exploring the relationship of this law to your scenario facts, the better you understand the way the law on this topic works; its clear inclusions, its limits and any grey areas.

Now consider the scenario.

Underline or circle key facts in the question. These will normally raise issues and/or give you concrete facts to use when applying the law to the facts in your analysis.

Underline also the question you are asked, as you will need to be sure to build towards answering that in your analysis and also you want to ensure you directly answer that question inside your conclusion (see below)

E. Plan your answer

A HIRAC-style answer will discuss the issues thoroughly and logically. Each issue will be raised and analysed by explaining the relevant law, applying that law to the facts in this scenario and expressly drawing a conclusion. In the conclusion, the answer will clearly give the writers opinion on the question/s originally asked in the scenario question

Some sample answers.

Note, as this sample has been prepared in light of the fact that this exercise was practice and preparation for an exam question, there are some differences here in the presentation as compared to say an assignment question

Case citations have been omitted

Case names are underlined (instead of italics); and

Case names have been shortened/abbreviated from even the first reference to the case

No footnoting

Sample reading/planning time

In reading time, actively read the scenario and plan an outline of response:

CarePlus Chemist in Melbourne has a large display of sunglasses for sale. The display area for the sunglasses bears a large sign reading QUALITY, DESIGNER SUNGLASSES FOR SALE: just $49. Every pair of sunglasses on the display carries a 1.5cm x 2cm label attached to the arm of the sunglasses, in the format of the image below (although different designers brand names are mentioned on different sunglasses):

2103120119380Just like

OAKLEY

(Top 10 brand 2020)

00Just like

OAKLEY

(Top 10 brand 2020)

Sam purchased a pair of those advertised sunglasses from CarePlus Chemist, believing he was buying Oakley sunglasses. The pair he purchased appeared very similar in colour and shape to the (genuine) Oakley Flak sunglasses his friend owned, although he can now see that the logo on the sunglasses arms is different to that of Oakley. Sam was disappointed to learn his pair are fake copies of the Oakley product. .

Advise whether Careplus Chemists actions here involve a breach of s 18 Australian Consumer Law (ACL) (reprinted below), also taking into account the extract from Parkdale v Puxu [1982] HCA 44 as reprinted below.

On the pages that follow, we have reproduced some SAMPLE answers

***Remember your conclusion may be different to the one reached here and still earn the same mark - you are marked on your understanding of the law and your logical legal reasoning in identifying issues, addressing each issue by explaining the relevant law and applying that law to the facts of the problems, and drawing a conclusion to each issue plus an overall conclusion.

Sample ANSWERS for Sam v CarePlus Chemist

SAMPLE 1 (this answer would have achieved an HD).

Did Careplus Chemist breach s 18 Australian Consumer Law (ACL)?

Section 18 of the Australian Consumer Law (ACL) prohibits misleading or deceptive conduct by persons in trade or commerce. Careplus Chemist (CC) is a person (company) and its conduct of selling sunglasses is clearly done in trade or commerce.

The central question here is whether CCs conduct of selling sunglasses from a display with a large sign above them indicating that the goods were quality, designer sunglasses for $49 is conduct that was misleading or deceptive, or likely to mislead or deceive, within the meaning of those expressions in s18 of the ACL.

Determining the answer to whether or not this conduct is misleading or deceptive requires a consideration of s18 of the ACL and the cases Parkdale v Puxu (Parkdale) and McWilliams Wines v. McDonalds (McWilliams). Although these cases related to the former s52 of the Trade Practices Act (TPA), they are relevant here because s18 of the ACL is almost identical to the former s52 TPA that it has replaced.

As a general rule, the sale by one manufacturer of goods which closely resemble those of another manufacturer is not a breach of s18 IF the goods are properly labelled. (Parkdale, Gibbs CJ)

The question then to ask is whether a purchaser could be expected to look for, and see the 1.5 x 2cm label attached to each pair of sunglasses and more particularly the words just like on the label (Parkdale, Mason J).

In doing so, consideration must first be given to the class of consumers likely to be affected by the conduct. (Parkdale, Gibbs CJ). The persons likely to be affected in the present case, are the purchasers of Oakley brand sunglasses from chemists. In this case, would these consumers, if acting reasonably, look for a label, brand or mark when buying their sunglasses? When considering this question, the court must take into account evidence which indicates the degree of risk of confusion, as this is material to an appreciation of the conduct of a trader in marking or getting up his (sic) goods for sale in competition with the goods of another trader. (Parkdale Brennan J)

The Court in Parkdale considered whether the label of the appellant (which was comparatively small (6 cm) to the size of the goods, could be easily hidden and had a distinct name to the respondents), was sufficient to avoid a breach. In this case, the facts are different. CCs label cannot be hidden from view of the consumer and the label was quite large in comparison to the size of the sunglasses.

The case of McWilliams indicated that conduct was not misleading or deceptive if it told the truth. McWilliams involved two products that were entirely different kinds of goods (wine vs hamburgers). Here, we have for sale the same type of goods (sunglasses) that were in similar colours and shapes as the original Flak design.

The fact that on initial observation, the large sign indicated that quality designer sunglasses were for sale for $49 and that the brand name of Oakley was used on the label on the sunglasses may cause a consumer to be wrongly confused. In addition, $49 is approximately half the price of a genuine pair of Oakley sunglasses purchased online and therefore it is conceivable that the sunglasses could be a part of a genuine sale.

Conclusion

On the basis of the information supplied, it is my opinion that a court is likely to find that the mistake was induced by CCs conduct. (Parkdale) and therefore is a breach of s18 of the ACL because it was misleading or deceptive behaviour.

Sample 2 (This answer found there was no breach compared to the other two which found there was a breach)

CarePlus Chemist & s18 ACL

Section 18 Australian Consumer Law (ACL) prohibits

Conduct that is misleading of deceptive OR is likely to mislead or deceive

By person(s), in trade or commerce

In trade/commerce?

S 18 ACL only prohibits misleading conduct from occurring in trade or commerce. CarePlus Chemist (C) is selling the sunglasses to consumers at the retail store, so clearly these commercial activities are in trace or commerce.

Misleading/deceptive, or likely to mislead/deceive?

C used a banner Designer Sunglasses above the sunglasses display, also there were tags on the arms of the glasses, referring to specific brand names, eg Oakley, whereas in fact the sunglasses were copies of well-known brand name sunglasses. The central issue is whether this conduct by C amounts to misleading or deceptive conduct under s 18 ALC.

In Parkdale v Puxu the High Court considered the scope of the phrase misleading of deceptive or likely to mislead of deceive, in the context of determining whether the sale of furniture looking very similar to an existing competitors design breached s 52 Trade Practice Act (Cth). S 52 TPA is the precursor of and virtually identical to s 18 ACL (the only difference being that s 52 was restricted to conduct by corporations, whereas s 18 ACL covers conduct by any kind of person).

To whom does the conduct need be misleading/deceptive?

In Parkdales case, the Gibbs CJ (at [6]) said the fact that some customers had actually been misled was not decisive; instead one must ask whether it is likely that a reasonable customer would be misled? In Parkdales case, this was hypothetical reasonable prospective purchaser of a $1,500 lounge suite (in 1982). Applying this to our case, Sams misapprehension is not decisive; instead we must ask what a reasonable prospective purchaser of sunglasses would think/believe.

Is Cs conduct misleading/deceptive under s 18 ACL?

In Parkdales case, all four judges observed that merely offering for sale products similar in design to a known brand would not always amount to misleading or deceptive conduct under s 52 TPA (now s 12 ACL). According to Gibbs CJ (a member of the majority), reasonable prospective purchasers seeking a particular brand of furniture would look for a label if seeking to buy particular brand of furniture. All four High Court judges asked whether the labelling used saved the conduct (selling look-alike products) from constituting a breach of s 52 TPA. By 3:1 majority, the court held that even though the label was small and unobtrusive, it was sufficient to avoid breach of s 52 because it followed the industry standard on labelling of furniture.

Applying this approach to our facts, the brand of sunglasses purchased is likely to be important to the type of consumer at whom the banner Designer Sunglasses was aimed. We are not told the normal price of Oakley sunglasses, however if $49 was a low price then that would have made a reasonable purchaser wary and wonder Whats the catch here?. The label states that they are Just like [Oakley ], and those words are accurate as the glasses are LIKE Oakley glasses in shape and colour. Although the font was small, these were not prescription frames like in a specialist glasses shop, so the reasonable purchaser could read it. The tag itself was small, but then sunglasses are small, and the tags here were proportionately much larger than the labels on the furniture in Parkdale. Importantly, sunglasses are items that an average or reasonable buyer would spend some time in pre-purchase examination - trying on the glasses, comparing them to other models on offer etc - and in that process they would see any labels attached PLUS also any logo on the glasses. The glasses Sam purchased do not carry the Oakley logo - they carry a different logo. If the normal branding of sunglasses consists of the manufacturers symbol/logo on the glasses, then the glasses sold by C do follow industry standard in identifying that they are something OTHER than Oakley. In Parkdales case, Murphy J (in the minority) found the labelling there insufficient to avoid breach of s 52 largely because it was easily hidden by cushions. However, the logo on sunglasses has no place to hide, and someone to whom the brand was important would look for their desired logo.

Finally, the other leading case (McWilliams case) referred to in the extracted judgments, as it appears of limited relevance here. McWilliams case involved the use of a name (BIG MAC) already associated with an existing product (hamburgers), but in relation to a new type of product entirely (wine). As those were the key facts behind the High Courts finding of no breach of the precursor to s 18 ACL, that case should be distinguished from the current problem as the two products here are the SAME type of product (sunglasses).

Conclusion

Cs conduct here involves marketing/selling a similar product, and stating (accurately) that is it designed to be similar to the well-known brands. Therefore, Cs banner and labels, taken together with the industry-standard of using accurate logos on the sunglasses themselves, would not mislead reasonable customers into believing these are genuine Oakley (etc) items. For these reasons Cs conduct does not breach s18 ACL.

Sample 3 (this one is footnoted like you need for an assignment)

Misleading or Deceptive conduct

The issue in the current case is whether or not Careplus Chemists selling of sunglasses in the same colour and shape as Oakley is misleading or deceptive or likely to misled or deceive? Further is the label on the sunglasses Just like Oakley and the advertised sign Designer Sunglasses is misleading or deceptive or likely to misled or deceive?

Section 18 of the Australian Consumer Law (ACL) prohibits a person who engages in trade or commerce from misleading or deceptive conduct or conduct that is likely to mislead or deceive

In Mc Williams Wines Pty Ltd v Mc Donalds System of Australia Pty Ltd the Court held that conduct was not misleading or deceptive if it tells the truth, persons under the influence of an erroneous idea do not draw false conclusions concerning it, it is not enough to establish conduct complained caused people to wonder whether two products may have come from same source.

Similarly, in Parkdale Custom Built Furniture v Puxu Pty Ltd (Parkdale) the Court held the conduct was not misleading or deceptive by considering the following factors:

The class of consumers likely to be affected by the conduct,

The defendants conduct viewed as a whole,

The conduct must mislead or deceive beyond whether product comes from the same source,

Whether an ordinary person would be expected to look or see a label,

If the design is protected by valid registration and

The material factor was the degree of risk of confusion.

In Parkdale the court refers to s52 of Trade Practices Act 1975 (Cth) which is the precursor of and virtually identical to s18 ACL (the only difference being s52 restricted to conduct by corporations where as s18 ACL covers conduct by any kind of person)

The first two elements of s18 of ACL are satisfied given Careplus Chemist is a person (which includes companies) and is in the business of selling sunglasses as well as other products.

Mc Donalds case involved two companies selling different products (one being wine and the other hamburgers) using the same term Big Mac in their marketing which was not misleading or deceptive. In contrast, this case concerns two companies, Careplus Chemist and Oakley which are selling the same product (Sunglasses), same colour and shape, which is likely to result in Careplus Chemist sunglasses being confused with Oakley.

Applying the legal principles of Parkdales case to the current case, firstly the class of consumers may not look for the label given the sunglasses are the same colour and shape and from a first impression they appear the same. Also the cost of sunglasses is substantially lower ($49 a pair which was the sale price) in comparison to Parkdale which involved sale of furniture in the amount of $1,500.00. The facts in this case are limited and do not provide the exact retail price to make a direct comparison. The cost of sunglasses are minimal in comparison to furniture which is more costly, it is unlikely consumers would look at label to ensure costs are consistent with their choice. If the consumers did look for the label they may only look at it in a glance and only take notice of the large font Oakley and may not take notice of the small words which state just like

Examining the conduct of Careplus Chemist as a whole the use of the advertisement sign designer sunglasses for $49.00 together with the use of a label which has just like in small font and Oakley in large font, as well as the label itself being small and hard to locate, the logo on the sunglasses small and also hard to locate, all these factors as a whole is misleading and confuses the purchaser. It implies to the purchaser that Oakley sunglasses are being sold by Careplus Chemist given it is a designer brand and they have designer brands on sale.

Applying ordinary person test in Parkdale to check the label, an ordinary person would not check for the label but associate the same colour and shape sunglasses as Oakley and the use of the sign designer sunglasses as that it is more than likely that a customer would make the assumption that a pair of sunglasses which look like Oakley would be an Oakley product. If a consumer was in a rush they could easily misread label given the size of the font used on the labels. They may only read the larger font Oakley Top Brand for 2015 and not notice the small font just like. Further it is noted that the label is small (1.5cm x 2cm in size.) The degree of risk of confusion in the current case is high given all elements the same product (sunglasses are being sold) both companies (Careplus Chemist and Oakley) are selling sunglasses which appear to be the same colours and shape.

Overall Careplus Chemist display of the advertisement sign designer sunglasses for sale and the label on the sunglasses breaches s18 ACL as it is misleading or deceptive, and is likely to mislead or deceive the consumer.

BLB1101 Australian Legal System in Context

Assessment 3 Critical Reflection and Legal Reasoning Task

Due Date Part A - Critical Reflection & Part B Legal Reasoning Task

Both parts are due on the Monday of Week 4 by 11.59pm

Word Count Total 1600 words (Part A 750 words and Part B 850 words)- (excluding footnotes and bibliography) and a 10% leeway applies to this assessment.

Weighting of Assessment Task 50% of total marks for the unit

Submission requirements Submit electronic copy Assessment 3 dropbox link on units VU Collaborate space). (Also read this Unit of Study Guide and the coversheet for warnings regarding collusion and plagiarism and information about avoiding those behaviours.)

Late penalty 5% per day including any weekend days and public holidays. Where there is any question about time of submission, the timing of the online submission will be used provided the file uploaded is in a format readable by the examiner and the online marking system. Please note that the dropbox will close 3 days after the due date at 5pm on Thursday Week 4 and no submissions after this time will be marked

Referencing requirements AGLC4 compliant footnotes and an AGLC compliant bibliography must be included.

Presentation requirements Font: Size 12 font New Times Roman

Spacing: 1.5 paragraph spacing

Include a bibliography (Remember you need to also use footnotes). You can submit one bibliography for both parts of the assignment.

Title page: Your assignment should have a title page with your full name, student ID, Total Word Count and Name of Lecturer and your Class)

PART A Critical Reflection (750 words)

Purpose of this assignment and ULOs assessed

The purpose of this assignment is to:

Experience first hand, the legislative arm of the government and where laws are made leading to a holistic, integrated and stimulating approach to learning.

Facilitate reflection on the experience to make connections to learning and aspects of the discipline.

Make connections between the experience, theory and unit content

Make connections between the legal system and social and political influences.

The unit learning outcomes assessed are:

Analyse the components of the Australian legal systems, and elaborate how these components intersect and interact and how lawyers use these systems (LO1)

Communicate using appropriate professional legal language and express ideas and perspectives (LO2)

Situate and analyse Australian legal systems within the broader contemporary social and political contexts (LO3)

Details

Prepare a short critical reflection on the Parliament Program and factors that impact the Australian Legal System (750 words) Note: You should incorporating your own Parliament Program journal entry and feedback from other students when addressing the points below. Your critical reflection must address the following:

A reflection on your learning experience through participation in the parliament program. Tip: What did you learn? How did your participation help your learning?

A comparison and reflection between the experience of participating in the parliament program and the unit content and other outside experiences Tip: Consider the positive aspects of the experience, how it improved your learning, how it connects to your studies (what you are currently learning about in this unit and will learn about in subsequent units), how does the experience relate to your knowledge of the Australian Legal System? how does it connect to your career objectives?

A reflection upon social and political factors that impact the Australian Legal System. Pick one theme (Indigenous Australians & Law, Race & Law, Gender & Law or Economics & Law) for this part of the critical reflection (Hint: refer to Session 5, Session 6 or Session 7) This part will require some research. Tip- how does law/legal structures/legal system impact the selected theme? How does the selected theme impact law/legal structures/legal system)

This is a critical reflection of the Parliament Program and should not be a recount of the class activity. You will need to do some research to write your reflection upon social and political factors that impact the Australian Legal System.

Structure/Presentation

Use sub-headings

You can write in first person language.

You must conduct legal research

Examples of Reflective Writing: https://student.unsw.edu.au/examples-reflective-writing

PART B - Legal Reasoning Task (850 words)

Relationship to other tasks and assessments

In Session 9 you completed a team legal reasoning exercise which you received feedback in class. Use the feedback from that class to prepare your response to Part B. During that in class activity you developed your ability to work collaboratively to solve a legal problem using legal reasoning. This assessment task assesses your ability to solve a legal problem using legal reasoning on an individual basis.

Purpose of this assignment and ULOs assessed

The purpose of this assignment is to:

Acquire foundational skills in identifying and explaining relevant law and applying the law in resolving disputes.

Build your skills in interpretation of legislation.

Develop written skills in persuasive legal analysis and reasoned argument.

The unit learning outcomes assessed are:

Communicate using appropriate professional legal language and express ideas and perspectives (LO2)

Articulate and write about law in a coherent and professional way (LO4); and

Work collaboratively and independently in order to use legal reasoning, to create and present logical structured answers to problem-style legal questions.(LO5)

889000Case/Scenario

The company ALSIC Blooms (florist) wanted to increase its turnover so it hired a business development consultant, Dee. Dee developed a marketing strategy, and presented it to the managing director of ALSIC Blooms. Although the managing director had some concerns about the consultants proposed strategy, he decided to follow the strategy precisely.

In line with this marketing strategy, for the Christmas sales in 2022, in December, ALSIC Blooms published the followed advertisement on television and through its social media department.

Natural Beauty at its best Fresh Colourful floral arrangements delivered to you on a regular basis. Join our fortnightly delivery service and enjoy free exercise bike worth $500. Minimum contract period and other conditions apply see our website for details. Only $80.00 per fortnight - join now at the following site, and receive your free 6mth exercise bike.

On the ALSIC Blooms website, the terms and conditions of this offer included:

Delivery charges applied to all orders: - $ 5 per normal delivery of floral arrangements and $200 for the delivery of the initial free exercise bike.

ALSIC Blooms was inundated with new floral arrangement subscriptions. This was great for the business. However, customer complaints began flowing in when the new customers realised how much they had been charged for the delivery of the free exercise bike. The volume of new customers was more than double the number predicted by their business development consultant, Dee. ALSIC Blooms was unable to begin deliveries of the free exercise bikes to about 500 of the new customers for four months given they were on back order. The managing director subsequently found out Dee had not inquired about the stock levels of the exercise bikes.

This situation and ALSIC Blooms advertising campaign and delivery delays has been reported to the Australian Competition and Consumer Commission.

Advise whether ALSIC Blooms has breached s 32 of the Australian Consumer Law (ACL), taking into account the decision in Nationwide News Pty Ltd v Australian Competition & Consumer Commission (ACCC) [1996] FCA 1684 (as extracted below).

Note: In your advice you must refer only to authority provided by s 32 ACL (reprinted below) and Nationwide News Pty Ltd v Australian Competition & Consumer Commission (ACCC) [1996] FCA 1684 as set out in the case extract provided below. Do not refer to any other legal rules (either cases or legislation) that you may happen to know but which are not expressly referred to below. Be sure to demonstrate legal reasoning in your answer using a HIRAC approach.

00Case/Scenario

The company ALSIC Blooms (florist) wanted to increase its turnover so it hired a business development consultant, Dee. Dee developed a marketing strategy, and presented it to the managing director of ALSIC Blooms. Although the managing director had some concerns about the consultants proposed strategy, he decided to follow the strategy precisely.

In line with this marketing strategy, for the Christmas sales in 2022, in December, ALSIC Blooms published the followed advertisement on television and through its social media department.

Natural Beauty at its best Fresh Colourful floral arrangements delivered to you on a regular basis. Join our fortnightly delivery service and enjoy free exercise bike worth $500. Minimum contract period and other conditions apply see our website for details. Only $80.00 per fortnight - join now at the following site, and receive your free 6mth exercise bike.

On the ALSIC Blooms website, the terms and conditions of this offer included:

Delivery charges applied to all orders: - $ 5 per normal delivery of floral arrangements and $200 for the delivery of the initial free exercise bike.

ALSIC Blooms was inundated with new floral arrangement subscriptions. This was great for the business. However, customer complaints began flowing in when the new customers realised how much they had been charged for the delivery of the free exercise bike. The volume of new customers was more than double the number predicted by their business development consultant, Dee. ALSIC Blooms was unable to begin deliveries of the free exercise bikes to about 500 of the new customers for four months given they were on back order. The managing director subsequently found out Dee had not inquired about the stock levels of the exercise bikes.

This situation and ALSIC Blooms advertising campaign and delivery delays has been reported to the Australian Competition and Consumer Commission.

Advise whether ALSIC Blooms has breached s 32 of the Australian Consumer Law (ACL), taking into account the decision in Nationwide News Pty Ltd v Australian Competition & Consumer Commission (ACCC) [1996] FCA 1684 (as extracted below).

Note: In your advice you must refer only to authority provided by s 32 ACL (reprinted below) and Nationwide News Pty Ltd v Australian Competition & Consumer Commission (ACCC) [1996] FCA 1684 as set out in the case extract provided below. Do not refer to any other legal rules (either cases or legislation) that you may happen to know but which are not expressly referred to below. Be sure to demonstrate legal reasoning in your answer using a HIRAC approach.

-

Resources for your submission-

Australian Consumer Law (schedule 2 of Competition and Consumer Act 2010 (Cth))

S 32 ACL offering prizes, rebates etc

(1) A person must not, in trade or commerce, offer any rebate, gift, prize or other free item with the intention of not providing it, or of not providing it as offered, in connection with:

(a) the supply or possible supply of goods or services; or

(b) the promotion by any means of the supply or use of goods or services;

...

(2) If a person offers any rebate, gift, prize or other free item in connection with:

(a) the supply or possible supply of goods or services; or

(b) the promotion by any means of the supply or use of goods or services;

..

the person must, within the time specified in the offer or (if no such time is specified) within a reasonable time after making the offer, provide the rebate, gift, prize or other free item in accordance with the offer.

(3) Subsection(2) does not apply if:

(a) the person's failure to provide the rebate, gift, prize or other free item in accordance with the offer was due to the act or omission of another person, or to some other cause beyond the person's control; and

(b) the person took reasonable precautions and exercised due diligence to avoid the failure.

.

NOTES: A pecuniary penalty may be imposed for a contravention of sub-sections 1 or 2. Subsection: under s 154 ACL, breach of s 32 ACL can constitute a criminal offence, with a penalty up to $1,100,000 for a company, or up to $200,000 for other people

In 2010, ss 32 and 154 Australian Consumer Law (ACL) replaced ss 54 and 79(1) Trade Practices Act (respectively). The scope of the new ACL provisions is similar to the previous law under the equivalent sections of the Trade Practices Act.

The following case related to alleged breaches of the former s 54 Trade Practices Act 1974 (Cth)

Nationwide News Pty Ltd v Australian Competition & Consumer Commission (ACCC) [1996] FCA 1684.

DECISION

HEEREY J1. The Australian Competition and Consumer Commission (the Commission) has brought charges against Nationwide News Pty Limited (Nationwide) under s 54 of the Trade Practices Act 1974 (Cth), (the Act) .

2. Nationwide is the publisher of two Sydney newspapers, the Daily Telegraph Mirror and the Sunday Telegraph. In July and August 1994 those newspapers embarked on a promotion which involved the offer of a "free" mobile phone. The promotion was carried out in conjunction with Smartcom which had a connection with Vodafone Pty Limited (Vodafone), the operator of a mobile telephone network. The essential feature of the promotion which has led to these prosecutions is the fact that a person wishing to take up the offer was required to enter into an agreement (known as Smartplan 130) with Smartcom under which he or she would have to pay (a) a connection fee of $65; (b) a delivery charge of $19.95; (c) a "security deposit" of $260 said to be refundable after 15 months if certain conditions were met; and (d) $130 per month in advance for a minimum of 15 months in respect of access to the Vodafone Mobile Digital Network, which would include the first $120 worth of calls per month.

The Newspaper Advertisements

3. On page 7 of the Daily Telegraph Mirror Late Final edition for Thursday 28 July 1994 there appeared an advertisement 4 x 21cm in vertical format containing a photograph of a mobile phone and the words "Free mobile phone for every reader Don't miss Monday's Telegraph Mirror".

4. On page 7 of the Daily Telegraph Mirror Metro edition for Friday 29 July there appeared an advertisement in identical terms except that it was 4 x 16 cm.

5. On page 7 of the Daily Telegraph Mirror Late Final edition for Friday 29 July there appeared an advertisement in identical terms and size to the Metro edition of the same day except that after the words "for every reader" there appeared the words "*Conditions apply".

6. On page 157 of the Sunday Telegraph for Sunday 31 July there appeared a large advertisement taking up about three-quarters of the page with a photograph of a young woman holding a mobile phone and the words Don't miss your Telegraph Mirror tomorrow FREE* mobile phone from Smartcom Telecommunications Vodafone Mobile Digital. *Conditions apply For Telegraph Mirror readers.

7. On the front page of the Daily Telegraph Mirror Metro edition for Monday 1 August there appeared an advertisement 14 x 4cm in horizontal format immediately below the masthead. It consisted of a photograph of a young woman with a mobile phone and the words *FREE Mobile phone for Sydney Telegraph Mirror readers. *Conditions apply. From Smartcom Communications Vodafone mobile digital. Details Page 16.

8. The word "*FREE" appeared in white lettering about 8 mm high against a red star with gold border shading. The words "Mobile phone" were in blue on a white background. The words "conditions apply" were in red and the remaining words in black. All were on a blue background, with the exception of "Details Page 16" which were in black on a white background.

9. On page 16 of the same issue there appeared a photograph of the same young woman together with a young man, both holding a mobile phone. Under a heading "Get mobile with our phone offer" there was the following text: Sydney readers of the Daily Telegraph Mirror can own their own digital mobile phone - FREE We have teamed with Smartcom Telecommunications and Vodafone to offer an Ericsson GH 198 digital mobile phone and accessories with a recommended retail price of over $1000. The phone will operate on the Vodafone Mobile Digital network. The limited offer is subject to taking up a 15 months subscription to Smartplan 130 and is open to Sydney readers over 18 years of age with existing credit cards and credit approval. The Smartplan 130 costs a minimum of $130 a month and includes $120 worth of free calls each month. Additional charges are listed in the Terms and Conditions in the Public Notices section of the Teleclassifieds each day this week and next week. The phone offer is likely to appeal especially to existing mobile phone users who depend on them for business reasons. Tradesmen, removalists, couriers, drivers and sales people who make a high volume of mobile phone calls to run their operations are the kinds of people the offer could benefit most. In Sydney, the Vodafone mobile digital network is available in the suburbs listed on this page. To get your phone, all you need is five differently numbered tokens from the Daily Telegraph Mirror. A token appears each day from Monday. Cut the tokens out and attach them to the application coupon which will be published in the Daily Telegraph Mirror today and Tuesday. The Daily Telegraph Mirror cannot accept responsibility for readers entering into a legally binding agreement and recommends you seek independent legal advice if unsure of the terms. *Five thousand phones only are available, so be early.

10. All the foregoing was in the same size type as the general editorial content of the newspaper.

12. At the bottom of the page was a coupon. It had the words Digital Mobile Phone for the Daily Telegraph Mirror readers - *FREE Conditions apply. Sydney readers* of the Daily Telegraph Mirror can get a digital mobile phone with one battery and a rapid desktop charger worth over $1,100 ... FREE. The Daily Telegraph Mirror has teamed up with VODAFONE and SMARTCOM TELECOMMUNICATIONS to bring you this exclusive offer. Complete this application form and attach your five differently numbered tokens appearing in The Daily Telegraph Mirror this week. Then send it to: SmartCom, P O Box 174, Seaford, Victoria 3198. Your free telephone will be delivered to you within 28 days of your application being approved and accepted by Smartcom. Make sure you read the full terms and conditions appearing in the Teleclassifieds each day as the Daily Telegraph Mirror cannot accept responsibility for readers entering into a legally binding agreement and recommend you seek independent legal advice if you are unsure of the terms. Vodafone, Mobile Digital, Smartcom Telecommunications, The Daily Telegraph Mirror.

13. The coupon contained space for an applicant to include name and address etc. and also the following: Tariff Refundable Delivery Cost of Digital Please debit my required Security Fee Phone credit card for the Deposit amount shown below Smartplan 130 $260 $19.95 FREE $279.95

14. There was provision for placing name and other details of a credit card account and also the following: I have read and understand the terms and conditions in Teleclassifieds. I hereby subscribe to Smartplan 130 and authorise you to debit my credit card with security deposit and delivery fee of $279.95 and a one-off connection fee of $65, then $130 monthly plus call costs in excess of $120 monthly for the duration of the contract.

15. Under the heading Public Notices there appeared on page 65 in the classified advertisements section a notice headed "FREE MOBILE DIGITAL PHONE FOR SYDNEY READERS TERMS AND CONDITIONS OF OFFER". In summary, this notice stated that readers must be connected to the Vodafone Mobile Digital Network via Smartcom for a minimum of twelve months subject to 90 day termination after 12 months, that monthly accounts must be paid by credit or charge card mandate only, that the offer was subject to status (presumably credit status), product availability, network geographic coverage and the unconditional acceptance of the Smartcom Network Services Agreement, terms and conditions of which would be "included with your free phone". A security deposit of $260 for the Smartplan 130 had to be paid on application by credit or charge card only. This deposit was refundable in full after the minimum contractual period subject to "satisfactory payment history". A minimum fee of $130 per month for the contract period and an initial $65 one-off connection fee would be charged. Monthly access fees were to be charged monthly in advance and additional calls monthly in arrears. Smartcom reserved the right to amend the tariff due to network tariff charges and change the model of the telephone supplied without notification. The offer was subject to a delivery charge of $19.95 to be paid on application by credit or charge card with up to 28 days allowed for delivery. The offer was open to any reader aged 18 and over, was valid until 1 October 1994 and was restricted to the first 5,000 qualifying respondents. There then followed the terms of an acknowledgment under the Privacy Act which in effect was a consent to Smartcom providing information to a credit agency.

Statutory Provisions

20. Section 54 provides:

A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services, offer gifts, prizes or other free items with the intention of not providing them, or of not providing them as offered.

21. By s 79(1)(a) and (b) of the Act a person who contravenes a provision of Part V is guilty of an offence punishable on conviction, in the case of a person being a body corporate, by fine not exceeding $200,000. Sections 53 3 and 54 are in Part V.

The Informations against Nationwide

22. There were six newspaper advertisements. In respect of each advertisement there are informations alleging contravention of s 53 and s 54, a total of 24 informations in all. Although there is some variation between the form of the differing advertisements, the issues which arise in this case can be most conveniently dealt with by considering the informations in groups according to the particular statutory provision concerned

Group IV s 54- Not Providing as Offered

44. This group consists of informations (criminal complaints) 3, 6, 9, 12, 15, 18, 21 and 24, which cover each advertisement. These informations allege that Nationwide in connexion with the promotion of the supply of goods, to wit newspapers, offered free items, namely mobile phones, with the intention of not providing them as offered.

45. Particulars to these informations state that the advertisement "Free mobile phone for every reader Don't miss Monday's Telegraph Mirror" (and variations) "constituted an offer to provide a mobile phone to every reader of the Daily Telegraph Mirror without conditions". It was said that Nationwide at all material times intended that mobile phones (a) would only be provided to a maximum of 5,000 readers of the Daily Telegraph Mirror; and (b) subject to the further condition that in each case the reader entered into a Smartplan 130 agreement with Smartcom pursuant to which the reader would become liable to pay the amounts mentioned.

50. [O]ne of the elements of the offence created by s 54 is the intention on the part of the defendant of not providing the gifts, prizes or other free items in question, or not providing them as offered. These words "necessarily import a mental element": He Kaw Teh at 539 per Gibbs CJ. What has to be proved is the actual intention of the defendant, just as "purpose" in s 45D means "the operative subjective purpose of those engaging in the relevant conduct": Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 85 at 348 per Deane J.

54. [I]n my view these charges fail because the requisite intention has not been established.

55. The "offer" here was an offer of mobile phones on terms to be disclosed in the Daily Telegraph Mirror of Monday 1 August. There was no suggestion in the advertisements that anybody could take up the offer before that date, or without regard to whatever details were to appear in the paper published on that date. Commercially of course the whole point of the promotion in the earlier advertisements was to excite the attention of people who might be induced to buy Monday's paper. Nobody was going to get any phones in the meantime.

56. Nationwide never had an intention of not providing mobile phones "as offered" - that is to say on and from Monday 1 August on terms to be revealed in the Daily Telegraph Mirror of that date. In fact Nationwide did provide mobile phones in accordance with the offer. This proved not to be an onerous obligation - only 108 phones were applied for.

57. The limitation of the offer to 5000 phones was decided on by Mr Allan. A member of his staff told him that enquiries of the Daily Express in Scotland which had run a similar promotion indicated a likely level of demand which would make 5000 phones "more than enough". Mr Allan's own experience with promotions confirmed this view.

58. The offer would not convey the literal meaning that there were immediately available in some warehouse 1.3 million mobile phones, that being the readership of the Daily Telegraph Mirror. Obviously enough "every reader" meant every reader who applied for a phone. Nationwide in fact had the intention of providing a phone for every such reader. Nationwide believed on reasonable grounds that such intention could be carried out - as in fact it was. But in any case the offer "as offered" was on the terms which would appear in the Daily Telegraph Mirror of 1 August, which included a term that the offer was restricted to the first 5000 qualifying respondents.

60. I have found that there were no such contraventions [of ss 79(1) and 54] by Nationwide.

Orders

61. As to Nationwide, all [Group IV s 54] informations [complaints] are dismissed.

Task

Advise whether ALSIC Blooms has breached s 32 of the Australian Consumer Law (ACL), taking into account the decision in Nationwide News Pty Ltd v Australian Competition & Consumer Commission (ACCC) [1996] FCA 1684 (as extracted below).

Note: In your advice you must refer only to authority provided by s 32 ACL (reprinted below) and Nationwide News Pty Ltd v Australian Competition & Consumer Commission (ACCC) [1996] FCA 1684 as set out in the case extract provided below. Do not refer to any other legal rules (either cases or legislation) that you may happen to know but which are not expressly referred to below. Be sure to demonstrate legal reasoning in your answer using a HIRAC approach.

Assessment criteria

Your submission must:

Identify and analyse issue/dispute/problem. Deconstruct it by considering it from multiple perspectives.

Identify and explain the relevant elements in the legislation. Connect aspects of the issue/dispute/problem to the relevant and specific elements in the legislation.

Logically reason and structure your argument. Demonstrate legal reasoning in your answer using a HIRAC approach.

Conclude and offer clear and focused advice to the client

Write clearly and succinctly in the third person.

Reference your work as per AGLC.

Assessment criteria for Part A and Part B

ASSIGNMENT 3 Highly Proficient (HD) Proficient (D) Competent (C) Competent (Just) (P) Underdeveloped

(N) Very

Underdeveloped

(LN)

PART A Reflection (10% marks) The reflection is multi-faced, succinct analysis of the critical learning experience. The reflection is a good analysis the key learning experience. The reflection is a simple analysis of the learning experience The reflection is a description of the learning experience, however missing some key insights. The reflection is an incomplete description of some learning experience, missing key insights. No reference made to the learning experience.

Connections to unit and outside experiences (10% marks) Explicitly connects the experience, unit content and past learning (eg.

previous

units, life

experiences, future

goals) The reflection explains the learning process and implication s for future learning. Makes connections between the

experience to unit content and/or learning.

The reflection explains the learning process. Mostly connects the experience to unit content and/or

learning

The reflection demonstrates some thinking about learning. Makes limited or minimum connections to unit content and/or learning.

The reflection mentions some learning. Makes superficial or no connection to other learning or experiences.

The reflection does not address any learning. Connections made (if at all), are irrelevant or superficial.

Reflection on the experience and the social and political factors impact on the legal system (20% marks)

Critically reflects on the experience and the social and political factors that impact the Australian legal system in a succinct, logical and sophisticated way, articulating in-depth personalised ideas and perspectives and citing relevant evidence/research sources to support views expressed;

Reflects on the experience and the social and political factors that impact the legal system, makes clear connections, in a

succinct, logical and sophisticated way, articulating in-depth personalised ideas and perspectives and citing relevant evidence to support views expressed with occasional gaps;

Some connections between the experience and the social and political factors that impact the legal system, acknowledging different sides of the issue, including own perspective; evidence used is mostly relevant but may not always be used with understanding and consistency; there are gaps in reasoning; Occasionally unclear connections between the experience and the social and political factors that impact the legal system, acknowledging different sides of the issue, including own perspective; evidence used is mostly relevant but may not always be used with understanding and consistency; there are

significant gaps in reasoning; Limited connection or connections are irrelevant to the social and political factors that impact the Australian legal system; lacks conviction; report relies on unsubstantiated claims and/or demonstrates a lack of balance and consistency; major elements are missing;

No connections to the social and political factors that impact the Australian legal system; presents only one side of the issue; hard to follow and lacks conviction; report relies on unsubstantiated claims and/or demonstrates a lack of balance and consistency; major elements are missing;

PART B Identify and analyse issue/ dispute/problem

(5% marks) Appraises the issue/s and complexities related to the problem. Constructs a clear problem statement with all relevant contextual factors Analyses the issue/s related to the problem. Recognises and defines the aspects of the problem including interconnections Summarises the issue/s related to the problem, identifies aspects of the problem Identifies most aspects of the problem Unclear definition of the problem. Misses or raises only superficially issues relevant to the problem Fails to show real understanding of the legal issues; Misses or raises only superficially issues relevant to the problem

Identify and explain the relevant elements in case law and

legislation (15% marks)

Systematically deconstructs and correctly identifies all relevant elements in the legislation. Succinctly and comprehensively explains the key elements in own words. Correctly identifies key elements in the legislation. Comprehensively explains the key elements in own words. Identifies most key elements in the legislation. States the key elements mostly in own words. Identifies key elements in the legislation (at an acceptable standard) with some gaps; States the identified elements in the words of the source document. Identifies elements in the legislation however there are significant gaps and/or fails to summarise in own words

Fails to show real understanding of the elements in the legislation provided; Fails to summarise in own words

Reasoning and presentation of argument (25% marks) Logically applies legal reasoning to the issues in the problem; Systematically and

consistently applies relevant

principles/rules/tests to the problem; Consistently and accurately uses evidence to defend argument. Applies legal reasoning to the issues in the problem. Applies relevant principles/rules/tests to the problem. Consistently uses evidence to defend argument. Adequately applies legal reasoning to the issues in the problem. Mostly applies relevant principles/rules/tests to the problem. Mostly consistent in using evidence to defend argument. Basic application of legal reasoning to the issues in the problem. Occasionally applies relevant principles/rules/tests to the problem. Occasional use of evidence to defend argument.

Unclear application

of legal reasoning to the issues in the problem. Limited application of relevant principles/rules/tests to the problem. Poor or limited use of evidence to defend argument.

Fails to apply legal reasoning to the issues in the problem. Misses or only superficially applies the relevant principles/rules/tests to the problem. Poor or limited use of evidence to defend argument.

Conclusion and advice to client

(5% marks)

Conclusion based on evidence presented. Advice is clear, fulsome, tailored to the client, with good consideration of ethical dimensions

A reasoned conclusion based on evidence presented. Conclusion draws upon evidence presented. Advice provided is adequate. Conclusion relates to some evidence presented. Advice is basic and occasionally vague. Conclusion not tied to evidence presented. Advice is vague, misleading or absent Fails to provide a conclusion and little or no advice based on analysis

GLOBAL Matters (Part A and Part B) Writing/Legal Literacy (5% marks) Writes with clarity and fluency and is error-free including use of third person language (first person language accepted for Reflection component only);

Uses succinct, accurate subheadings to add clarity and direction for both the reader and the writer.

Prepares Part B (legal reasoning response) using HIRAC structure

Writes with clarity and is mostly errorfree, including the use of third person language (first person language accepted for Reflection component only.

Uses sub-headings to add clarity and direction for both the reader and the writer.

Prepares Part B (legal reasoning response) using HIRAC structure

Writes clearly and generally conveys meaning. Some defects may occur in meaning, formality, use of third person or subheadings ; Mostly correct use of HIRAC structure in formulating answer in B (legal reasoning response)

Writing generally conveys ideas and may include some errors.

Writes clearly and generally conveys meaning at an acceptable standard. There may be several defects in meaning, formality, use of third person or subheadings;

Mostly correct use of HIRAC structure (Part B legal reasoning response) in formulating answer may have occasional gaps;

Writing sometimes impedes meaning because of errors in usage.

Writes underdeveloped or inappropriately informal, poorly structured (including lack of subheadings) and/or badly-phrased language. Meaning often unclear. Often hard to understand. Fails to achieve an acceptable level of written expression for a legal context. Fails to or poorly uses the HIRAC structure in formulating answer (Part B - legal reasoning response)

Writing is underdeveloped, impedes meaning because of errors in usage.

Writes underdeveloped (including no subheadings) and/or badly-phrased language. Fails to achieve an acceptable level of written expression for a legal context.

Fails to or poorly uses the HIRAC structure in formulating answer.(Part B - legal reasoning response)

Applies AGLC correctly, including footnotes and bibliography (5% marks) Applies AGLC largely correctly throughout, in footnotes and bibliography Applies AGLC mostly correctly in footnotes and bibliography with occasional errors Applies AGLC at an acceptable standard for an introductory unit. Shows several deficiencies in AGLC application and/or

Fails to submit a bibliography or complete footnotes Shows severe deficiencies in AGLC application and/or

Fails to submit a bibliography or complete footnotes