Annotated Bibliography on Legal Institutions and Process Assignment

Assignment Task

Instruction

You work in in a legal practice and ultimately will be required to provide advice to the firm’s client, Sally. Sally has detailed the following facts.

Factual Scenario

Basketball and More Pty Ltd (‘BAM’) is a company that specialises in the sale of basketball rings and backboards. The company operates in and is registered in Victoria. Paul is the director of the company.

Rings and Boards Pty Ltd (‘RAB’) is the company which manufactures the rings and backboards for BAM. RAB also operates in and is registered in Victoria, and Zain is the director of the company.

In his capacity as director of BAM, Paul sends a written order for 500 basketball rings and 500 basketball backboards to Zain in his capacity as director of RAB. Paul includes clear instructions that the rings and backboards must include a warning symbol which is in complete accordance with the Product Safety Australia, Mandatory Standards:

Sam expects to get $90,000 worth of retail sales for the basketball rings and backboards.

On the basis of the order, Zain manufactured 500 basketball rings and 500 basketball backboards and sent them to Paul. The rings and backboards have the RAB logo printed on them.

When Paul inspected the rings and backboards, he discovered that, contrary to the mandatory standards, they are not clearly marked with the requisite warning symbol. The human figure has been printed in red ink. However, the rings and backboards had the requisite written warning in complete accordance with the Product Safety Australia, Mandatory Standards.

Paul refused to pay and returned the rings and backboards to RAB.

RAB incurred costs of $30,000 for the order. Zain was afraid of losing further contracts with BAM and so accepted the returned rings and backboards, but also did not want his company to have to cover the $30,000 in production costs. So, rather than destroying or rectifying the non-compliant rings and backboards, he decided to sell them via an online site to recoup those costs.

Zain then advertised the rings and backboards as a ‘Buy It Now’ purchase on an online site, which is a direct wholesale site. To create the advertisement and to enter the site and to provide the item description and bidding details, Zain provided the full name, ACN and contact details of BAM. However, for the payment, he used the account details of RAB.

Sally is a sole trader of a small children’s store in Victoria. While looking online for new stock she saw the advertisement and recognised the company name of BAM. She had used the company’s products in the past and had been very pleased with the quality and compliance and how well they had sold, so she put in a bid of $30,000 and won the wholesale auction.

Zain was keen to get the rings and backboards off his premises, so he delivered the goods to Sally on credit, noting that she had 30 days to pay the $30,000. When the rings and backboards arrived, Sally inspected them and discovered the mandatory warning was non-compliant and thus she could not legally sell them.

Sally now seeks your firm’s advice about any possible remedies at common law, equity and statute.

The file has been allocated to you. You must now undertake some initial legal research to:

(i) to locate ten sources that are relevant to advising Sally,

(ii) to cite those sources and to demonstrate how you found them, and

(iii) undertake an initial analysis of each source to indicate how and why it might assist Sally to achieve any remedies potentially available to her.

NOTES RELEVANT TO THE COMPLETION OF ASSESSMENT TASKS

(A) GENERAL NOTES

Assessment 2 is a task to develop your legal research and writing skills, and to start you on the track of thinking about how the law can be applied in different situations (or not). The focus is on training you to be able to look at a factual situation and to make an assessment about what are the material facts (that is, the relevant facts) that have the potential to enliven areas of the law and:

• to locate some of that law using legal research steps
• to cite those sources in accordance with the Australian Guide to Legal Citation (4 ^th ed, 2018) (AGLC) style
• to give an initial account about why there is an arguable fit (between those facts and the source of law that has been cited as potentially applicable).

The ability to make the assessment about what is potentially applicable law comes with a little knowledge of the law and with experience. And the fact that you are not expected to know the potentially applicable law in this task in advance or in detail is the reason you have been provided with the areas of law that are potentially applicable (see point (2) below). You will be assessed primarily on (please see the Marking Guide also):

• how you cite sources of law
• demonstration of legal research steps
• demonstrate the development of a relevant approach to connecting and considering the relationship between facts and potentially applicable law.

In terms of the relationship between Assessment 2 and Assessment 3, the following is noted. The ultimate purpose of Assessment 3 is to consider and to assess the ACCC statement provided in the instructions for that task. However, rather than undertaking that consideration and assessment in the abstract, you are to use the factual scenario of Assessment 2 (using the research you do for this task – and you can add new research if you wish) to provide some initial grounding for the Assessment 3 discussion. This means that in Assessment 3 you can start by discussing what your client’s situation is likely to be and then to use that discussion as a reference point when you move on to the main purpose of Assessment 3 – which, as noted, is to consider what the ACCC statement says. In other words, use your client’s situation as a platform to consider and to discuss how well the Anglo-Australian legal system is working for people in situations similar to your clients, including some overview of the historical development of this law and some critical assessment of how well it is working. There is not right or wrong answer in this task – it will be the quality of your argument and discussion that matters.

(B) ASSESSMENT 2

For the moment, while you ought to be aware of what will be required in Assessment 3, your focus is Assessment 2. For Assessment 2:

• Read the factual scenario carefully.

• Research the law that arises from these facts. You are instructed that the factual scenario potentially enlivens laws primarily in the areas of:
• contract law / sale of goods legislation – including remedies in contract law and/or equity; or
• misleading and deceptive conduct together with public enforcement action in statutory consumer law; and/or
• product safety standards together with public enforcement action in statutory consumer law.

• As a starting point for your research you are referred to the following materials:
• Paterson, Jeannie, ‘Consumer Affairs: Introducing the new, National Australian Consumer Law’ (2011) 36(1) Alternative Law Journal 50
• Andrew Coleman et al, Law in Commerce (Lexis Nexis, 7th ed, 2020). This text covers both the general law (common law and equity) and statutory law (sale of goods legislation and Australian Consumer Law). At this stage you are not expected to know this law in detail, but it will be possible for you get some sense of how the areas of law mentioned above could be applied to the facts. For this purpose, you might find the following paragraphs helpful: [3.1]-[3.44], [4.1]-[4.13], [4.22], [6.9], [7.14]-[7.34] on sale of goods contracts and Chapter 8 on common law and equitable remedies – note these will more difficult for the client to achieve than statutory remedies – on this point see [8.61] which notes the broad powers under the ACL.
• The Australian Consumer Law: A framework overview – see Unit Content
• The Australian Consumer Law: A Guide to Provisions – see Unit Content
• Australian Consumer Law notes prepared by Digby Von Muenster Law – see documents attached to Assessment 2 instructions
• Australian Competition and Consumer Commission, Product Safety laws – Mandatory Standards 

• Use the template provided to create an Annotated Bibliography in which you undertake research and analysis for relevant law and include the ten most relevant sources located. Use the various legal research databases demonstrated in Topic 3 to conduct your research (do not use general search engines such as Google).

• Your sources must include at least one source from each of the following categories:
  • a case,
  • legislation, and
  • a secondary source.

• The template includes three cells for you to populate:
• the top cell requires you to reference the individual source according to the AGLC referencing style for Bibliographies (see the example source citation styles in rule [1.13]);
• the middle cell requires you to demonstrate how you located the source contained in your Annotated Bibliography in a short list underneath each source. Document your research steps in an abbreviated list form (dot points is acceptable for this step). Check your method is clear and briefly states each step taken to locate the information. Note: including something like ‘Database’ does not demonstrate any relevant legal research skills;
• the bottom cell requires you to provide an initial analysis of the relevance of the source to the factual scenario. Where relevant, this analysis is required to integrate a description of the or the judicial role of Australian courts and/or the legislative function of Australian parliaments. This means that in addition to saying what aspects of the law are potentially relevant, when relevant, you ought to note how and why the source is relevant (jurisdiction, binding precedent, etc).

• With respect to your initial analysis : as much as possible paraphrase the main ideas found in each source. If you do use quotes in this analysis be sure to keep them brief. For the purposes of this Annotated Bibliography (only), you are not required to provide a reference (via a footnote) for any paraphrased ideas (which is usually a requirement in academic work), but you must do so for any direct quotes.

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