COML 203 Exam
Which Action Would a Plaintiff Use?
*If plaintiff is the OBJECT (relies on a statement directed TO them): - negligent mis-statement - contractual misrepresentation - Fair Trading Act * If plaintiff is the SUBJECT of the statement (is talked etc about): - Defamation - Fair Trading Act
Words stated to Plaintiff II: Characteristics of actionable pre-contractual misrepresentations
- "False statement" of fact-- made by one (eventual) contractor to another - Inducement-- is what defendant said a factor causing a contract with plaintiff to result? * did plaintiff know real truth before contracting? * did plaintiff take steps to find out truth? * when did plaintiff discover misrepresentation? * statements must be of fact opinion, promise or prediction? * silence or failure to warn ? - utmost good faith contracts
Filing a Patent:
- A patent for an invention may only be granted to a person who is THE INVENTOR (s.22) - EXCLUSIVE rights given by a patent (s.18) - to exploit the invention - to authorise another person to exploit the invention Opposition to Grant of Patent (s.92) - proposed grant of patent may be challenged on grounds of: - invalidity (i.e. for failing on of the four tests) - mis-description (e.g. a flaw/ambiguity in the specification) Revocation of Patent (s.112) - granted patent may be revoked on similar grounds
Promissory Estoppel
- A promise not to enforce specified rights, which the promisor intended the promisee to rely on - Promisee does rely on promise - Creates a situation where inequitable to allow promisor to go back/deny original promise e.g. Central London Property Trust Ltd v High Trees House Ltd (1947) KB 130
Employment-Related Statutes
- ANZAC Day Act 1966 - Fair Trading Act 1986 - Income Tax Act 2007 - Industry Training Act 1992 - Modern Apprenticeships Training Act 2000 - Privacy Act 1993 - Protected Disclosures Act 2000 - Remuneration Authority Act 1977 - Smoke-free Environments Act 1990 - State Sector Act 1988 - Volunteers Employment Protection Act 1973 - Waitangi Day Act 1976
Termination of Offers
- Acceptance - Rejection and counter offer - Lapse (if time specified, then offer lapses after time period expires) - if no time period lapse after reasonable time, death - Revocation
Defences
- Act of God - Statutory Authority
Indefeasibility of Title
- Anyone dealing with land can rely on the fact that the information in the register is accurate - Once a person appears as the registered owner on the Certificate of Title, their ownership is beyond dispute EXCEPT where they have acted fraudulently
Things that look like offers but are not...
- Statements in response to a query - Statement of intentions - Invitations to Treat (Pharmaceutical Society v Boots Cash Chemist (1953) 1 OB 401 BUT sometimes can be treated as offers; Carlill v Carbolic Smoke Ball Co (1893) 1 QB 256
Reasonable Reliance
- Statements may only be actionable if made where it is "reasonable to rely on them"-- - advice given in a "business or professional" context versus in a "social" context - imbalance of knowledge, status or expertise - formality versus informality Means of communication may determine when reliance is reasonable
Under the Law of Equity
- The law imposes an obligation on A because A has agreed to or has been placed in a relation of trust or confidence towards another; - Trustees - Persons in a fiduciary relationship (eg directors of coy) - Persons who have received information in confidence
Purpose of Torts
- To compensate someone who has been wronged by an award of money (damages) - Social purpose of encouraging people to take care - Distribution of risks
Exceptions to General Rule: 1st Exception
- When an offer to the world (unilateral contracts) - implied waiver of requirement of acceptance - Common example is when offering a reward - Smokeball case
Publication by Defendant
- defendant's statement must be witnessed by one + third party i.e. not just plaintiff - series of publications - postcards, letters and faxes - spouses - repetition
Negligent Acts vs Negligent Statements: ACTS
- foreseeability of P to D - proximity of P in time and place to D's act - breach of standard of care (factual) causation- - foreseeability - remoteness of harm
Negligent Acts vs Negligent Statements: STATEMENTS
- foreseeability of P to D - proximity of P - "special relationship" - reasonable reliance by P - breach of standard of care - (factual) causation- (actual) reliance remoteness of harm
Remedies
1) Damages 2) Injunctions and/or 3) Abatement
Remedies
1) Damages: - sum of money designed to compensate for harm suffered - awarded by the Court 2) Equitable remedies: - Injunction (prohibitory, mandatory) Rights conferred on a person: - to act in a way to prevent the (intending) tortfeasor infringing their rights - to recover the benefit of the right ("self-help remedies") e.g. self-defence; defence of property; 'abatement of nuisance'
Agents & Different types of Authority
1) Express 2) Implied 3) Usual
Agent Definition
An agent acts on behalf of a person, called a Principal, and has the power to make contracts which affect the principals legal position with regard to a Third Party
Usual or Customary:
An agent will be recognised as having authority for certain things, e.g. real estate has authority to show someone throughout a house.
What is a Contract?
An enforceable promise OR A legally binding agreement between two or more persons by which they acquire rights, owe duties and obligations
Who may Sue & be Sued?
An interest holder in land may sue: - freeholder - lessee - lodger; or - boarder Defendant is the creator/s (or adopter) of the nuisance: - contractor - employees - landlord responsible for tenant's activity?
Contribution
Any tortfeasor liable for damages suffered by any person as a result of a tort may recover contribution from any other tortfeasor who; is; or would if sued in time have been liable in respect of the same damage (whether or not as a joint tortfeasor) e.g. an employer found liable for his employee's tort may recover contribution from employee
Law of Tort
Law imposes various obligations not to act in a way that damages the interests of either persons in general or a class of persons - Purpose therefore is to prevent harmful conduct or to provide compensation for wrongful harm - Standard of behaviour is that of "reasonable person"
Other Torts (not connected with land)
Liability of statements - negligent mis-statement - defamation - deceit - injurious falsehood Economic torts - inducing breach of contract - conversion - passing off
Limitation
Limitation Act 2010: - is a defence to claim where the claim is filed at least 6 years after the date of the act or omission on which the claim is based - "The act or omission on which the claim is based" = the 'cause of action' - the cause of action is set of facts which will justify a conclusion that a legal duty has been breached (i.e a tort has been committed)
Copyright: Copyright Act, s.2 - Photograph
PHOTOGRAPH means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced; but does not include a film or part of a film Creation Records v News Group Newspapers [1997] EMLR 444 -- copyright cannot subsist in the choice of subject or the arrangement of the scene for a photograph
Copyright: Copyright Act, s.2 - Typographical Arrangements
TYPOGRAPHICAL ARRANGEMENTS: not defined in the Copyright Act shorter period of protection - 25 years c.f. other works covers font choice and the layout and arrangement of literary works on a page - as in a newspaper also covers new reprinted editions of books that have gone out of copyright e.g. Jane Austen's works or Shakespeare's plays
Common Law Qualified Privilege
duty/interest rule - "duty by X to tell Z (who has a special interest in receiving the information) about Y" defence applies only if publication is to Z and Z is not the general public unless public debate about politicians in the media proof of intentional or reckless falseness by plaintiff defeats it Defamation Act 1992, s.19
"Honest Opinion"
honest opinion (on a matter of public interest)-- is the essence of freedom of speech = editorial defence honesty: could the opinion honestly be held by a reasonable person? opinion may not be stated as a fact opinion must be based on true facts extreme motive is irrelevant if opinion is genuinely held
The 'Special Relationship' Filter
principles of proximity developing-- 1) can non-experts also be liable if they assume responsibility? 2) experts: has plaintiff relied on an expert's special skill? e.g. Hedley Byrne v Heller 3) Can no-experts also be liable if they assume responsibility? Is simple foreseeability of plaintiff ever enough?
Overview of defences
truth honest opinion absolute privilege common law qualified privilege statutory qualified privilege innocent dissemination consent
Negligent Silence and Promises
normally, an omission or failure to make any statement does not attract liability-- this is known as "mere silence" the concept of negligent promises rarely seen-- that is, normally promises are sued upon in "contract"
Actual Reliance: Causation & Damages
plaintiff will not prove their case if-- no actual reliance by plaintiff was defendant's statement a substantive and operative cause for plaintiff's loss? regardless of reliance, loss would have occurred anyway? loss incurred before statement was made
Possession
possession is a physical concept provides for right of control over the property also usually includes the right to use can be obtained lawfully or unlawfully * Examples of Ownership (Property) versus Legal Possession— - bailment : bailor (property) - bailee (possession) - lease: lessor (property) - lessee (possession) - hire purchase: seller (property) - purchaser (possession) - mortgage: mortgagor (possession) - mortgagee (property) - finding: finder (possession) - owner (property) Examples of Unlawful Possession -theft -conversion
ACC - The Act: s 26 Personal Injury
"26 : Personal injury" (1) Personal injury means— (a) the death of a person; or (b) physical injuries suffered by a person, including, for example, a strain or a sprain; or (c) mental injury suffered by a person because of physical injuries suffered by the person; or (d) mental injury suffered by a person in the circumstances described in section 21; or (da) work-related mental injury that is suffered by a person in the circumstances described in section 21B; or (e) damage (other than wear and tear) to dentures or prostheses that replace a part of the human body . . . (2) Personal injury does not include personal injury caused wholly or substantially by a gradual process, disease, or infection . .
Rylands v Fletcher Defences:
"Act of God" = Natural Disasters etc "Act of third party intervenor"
Trade Marks Act, s.89 - Infringement Where Identical or Similiar Sign Used in Course of Trade
(1) A person infringes a registered trade mark if the person does not have the right to use the registered trade mark and uses in the course of trade a sign—
ACC - The Act: s 25 Accident
(1) Accident means any of the following kinds of occurrences: (a) a specific event or a series of events, other than a gradual process, that— (i) involves the application of a force (including gravity), or resistance, external to the human body; or (ii) involves the sudden movement of the body to avoid a force (including gravity), or resistance, external to the body; or (iii) involves a twisting movement of the body: . . . . . . (3) The fact that a person has suffered a personal injury is not of itself to be construed as an indication or presumption that it was caused by an accident.
Copyright Act, s.21: First Ownership of Copyright
(1) Subject to the provisions of this section, the person who is the author of a work is the first owner of any copyright in the work (2) Where an employee makes, in the course of his or her employment, a literary, dramatic, musical, or artistic work, that person's employer is the first owner of any copyright in the work (3) Where— (a) a person commissions, and pays or agrees to pay for, the taking of a photograph or the making of a computer program, painting, drawing, diagram, map, chart, plan, engraving, model, sculpture, film, or sound recording; and (b) the work is made in pursuance of that commission,— that person is the first owner of any copyright in the work. (4) subsections (2) and (3) apply subject to any agreement to the contrary.
Trade Marks Act, s.25 - Registrability of Identical or Similiar Trade Mark
(1) The Commissioner must not register a trade mark (TM A) in respect of any goods or services if— (a) it is identical to a trade mark (TM B) belonging to a different owner and that is registered . . . —
Capacity
* Corporations and Companies: Corporations such as City Councils and NZ Post which are created by and Act of Parliament have the contractual capacity as outlined in the Act Companies under the Companies Act 1993, are said to have the same contractual capacity as adult humans UNLESS the company's constitution limits the capacity of the company - If a corporation/company goes beyond its powers, it is said to be acting ULTRA VIRES
Five Ways Agency Can be Created
* Express Agreement * Estoppel (Holding Out) * Operation of Law (Necessity) * Ratification * Implication of Law
Remedies: Types of Damages
* General Damages: - loss is suffered, but no objective means of quantifying e.g. false imprisonment *Special Damages: - loss is suffered, and objective means to quantify e.g. trespass to goods * Nominal Damages: - When tort occurs without proof of actual loss/damage e.g. assault; false imprisonment; trespass to land - mere infringement of rights is the tort - injunction might also be available * Exemplary Damages - punitive: designed to punish and deter similar conduct
Patents
* Provide protection for ideas and principles embodied in novel technologies, products, and processes * Rationale & scope— - to encourage invention and creativity as well as the investment of time and money in R&D - provides for a complete monopoly over the scope of the grant - independent second comer inventors can infringe RIGHTS OF THE PATENTEE - to manufacture the invention - to use the invention - to vend (i.e. sell or license) the invention - to import the invention - to authorise others to do the above acts Patent Protection lasts for 20 years
Trade Mark: Defences to Infringement
* Statutory defences to trade mark infringement include-- - use in relation to genuine goods (e.g. parallel imports) (s.97A); - reference to parts or accessories (e.g. by a spare parts supplier); - use for comparative advertising (s.94); - use in accordance with "honest practices" (s.95); Infringement Actions are most commonly defended on the basis that: - the trade mark is invalid; - there is insufficient similarity between the registered mark and the alleged infringing mark (and so, no likelihood of deception or confusion); or - the use is not "use as a trade mark" (e.g. a parody)
ACC - A Short History
* Worker's Compensation for Accidents Act 1900 *Motor-vehicles Insurance (Third-party Risks) Act 1928 *Woodhouse Commission 1967 - recommends a completely new 'no-fault' approach to compensation for personal injury * Accident Compensation Act 1972 * Accident Compensation Amendment Act 1973 : came into operation on 1 April 1974
The Land Transfer System
- Before the current land transfer system was introduced, all dealings with land were accomplished by "deed" - The current land transfer system (the Torrens System) replaced the deeds system in 1870 - Use of the system is compulsory - no legal interest in land may be created except by registration under the "Land Transfer Act 1952" BUT much Māori land remains outside the land transfer system - all dealings with this land must be accomplished in deed form and require the endorsement of the Māori Land Court
Types of Defamatory Suggestions
- Causing people to avoid plaintiff - Plaintiff-- is antisocial or dishonest has committed a criminal act is ridiculed is lazy/incompetent is in financial trouble NB: society's values change over time
Outline of Intellectual Property
- Copyright - Trade Marks (registered and unregistered) - Patents
Identification of the Plaintiff
- Does plaintiff "have" to be named ? NO: a general impression of who plaintiff is in the audience's mind is sufficient Can there be identification when a group is defamed ? - The need for personal identification - Small versus large groups
Sources of Contractual Obligations
- Express terms - Implied terms from common law - Implied terms from Statutes/Acts
Agent to Principal - Duties Include:
- Follow Lawful Instructions - Act honestly - Be diligent & use reasonable skills - Not disclose confidential information to the third party - Keep accounts - No conflict of interest with principal
What are the Core ILO Conventions?
- Freedom of association and effective recognition of the right to collective bargaining - Elimination of forced or compulsory labour - Abolition of child labour - The elimination of discrimination
Passing Off: Remedies
- Interim injunction - Permanent injunction - General damages to the amount of the plaintiff's loss or an account of profits - Delivery up / destruction - Removal of offending mark
Fair Trading Act 1986 - Remedies
- Interim injunctions - Permanent injunctions - damages (s. 43(3)) = amount of loss - time limit = 3 years
Sources of Employment Law
- International human rights conventions - Statute - Common Law (The Law of Contract & Tort) - Employment Agreements (Individual & Collective)
What does the ILO do?
- International labour standards are legal instruments drawn up by the ILOs constituents (governments, employers and workers) which set out basic principles and rights at work - The ILO regularly examines the application of standards in Member States and points out areas where they could be better applied
Disclaimer
- Is a complete defence - Is an express denial of responsibility by maker of statement to those who would potentially rely on it - "Must" be clear and unambiguous - Reasonable notice of disclaimer "must" be given
What is an Obligation?
- It is the responsibility that the law places on a person (A) to act or not to act in a certain way towards another person (B) - Includes corporate persons - Obligations can arise from common law or from statute - Normally the law of obligations is reserved for civil law
Rules of Consideration
- It must be sufficient (real and have value) - But it need not be adequate (of equal value)
Copyright: Statutory list of Protected Works: Copyright Act, s.2 - Literary Work
- LITERARY WORK means any work, other than a dramatic or musical work, that is written, spoken, or sung; and includes— (a) a table or compilation; and a computer program - Computer program not defined at all - covers program in both source and object code form "IBM v Computer Imports Ltd [1989] 2 NZLR 395" - compilation is defined very broadly in s.2 -- literary merit is irrelevant - although de minimis factors may apply to slogans
However even if its has all three elements it still may not be valid due to ....
- Lack of capacity - Lack of genuine consent - Illegal Also some contract have to be in a particular form (eh signed in writing etc) to be enforceable
Who can be sued in Tort?
- Natural persons - The Crown (because of the operations of the Crown Proceedings Act 1950, s.6) - Companies and other corporate bodies - Minors
Characteristics of Intellectual Property
- Negative or restrictive in nature - Territorial in scope: international conventions, principles of "national treatment" - Registration systems: some rights need to be registered to enjoy effective protection - Contracts can assist exploitation of IP rights
Offers can be made to:
- One person - A specific group - The whole world (exceptional cases like offers of rewards) - Only the person to whom the offer is made can accept the offer
Principal to Agent - Duties Include:
- Pay commission or other payments - Indemnify agent for expenses and any necessary expenditure on behalf of principal
2) Estoppel (Holding Out)
- Principal has said or done something to indicate to a third party that a person is his/her agent/or has authority to act on his/her behalf - Principal can not later deny person has no authority (as agent is treated as having apparent or ostensible authority)
Effect of Agency
- Providing that agent acted within authority then agent may have power to bind principal in a contract with a third party (if this is a term of an agency agreement). - Any act if an agent is beyond his or her actual authority then not binding on principal, unless the principal subsequently ratifies the contract or the principal held out the agent as having authority - Agent will not be personally liable under the contract, but potentially can be sued for breach of warrant of authority or tort of deceit. - A number of implied duties arise when then is an agency relationship
Damage to Reputation - Case Law Tests
- Right thinking members of society think less of plaintiff makes others shun or avoid plaintiff - Brings plaintiff into hatred, contempt or ridicule of others in the eyes of a representative section of society-- - local residents - company shareholders - fellow accountants - but not jail buddies
Passing Off: Elements of the Cause of Action
1) GOODWILL or a REPUTATION includes - the get up ("trade dress") - the key question is whether the get-up is functional or capricious: * "functionality" is dictated by the purpose for which the goods are made, their cost, or the practicability of manufacture * "capriciousness" is essentially a matter of the manufacturer's choice from a range of possibilities and is dictated by whim, aesthetics or a desire to be distinctive 2) Misrepresentation - establishing a likelihood of confusion is a question of fact in each case - degree of confusion required is "substantial" and/or "more than minimal" 3) DAMAGE/LOSS - damage to goodwill - diversion of custom - provision of inferior goods - erosion of distinctiveness
Simple Contract Must Contain 3 Essential Elements
1) Intention to create legal relations 2) Offer and acceptance 3) Consideration
Torts Connected with Land
1) Nuisance - public nuisance - private nuisance 2) Rylands v Fletcher actions 3) Trespass (to land)
Type of Nuisance
1) Ongoing annoyance or inconvenience only: - Interference with land use must be unreasonable in the context in which it occurs vs 2) Physical damage: - regardless of context will be actionable as long as damage is not trivial e.g. Ongoing nuisances VS one off single events Nuisances created by the defendant VS those the defendant has come to/happened upon
The Scale of Enforcement in Employment Agreements & disputes
1) PG: Raise with employer within 90 days > 2) Mediation > 3) Employment Relations Authority determination > 4) Challenge in Employment Court > 5) Appeal to CA/SC (law only)
Negligence: Elements to be proven by plaintiff
1) The Defendant (D) owed the Plaintiff (P) a DUTY OF CARE in law 2) That D breached that duty by failing to exercise the required appropriate standard of care ('BREACH') 3) That D's breach caused P's harm ('CAUSATION') 4) That the type of harm to P was not too remote from D's breach to render it socially or economically undesirable/unfair that P should be compensated (REMOTENESS)
Trademark: To Be Registered a "Trade Mark" must be
1) a sign/mark 2) that is capable of being represented in graphic form; and 3) that is capable of distinguishing the goods or services (i.e. be distinctive ) "Graphical Representation" is an administrative requirement for the documentary registration system
Defamation
1) defendant's statement diminishes plaintiff's reputation in the eyes of others 2) plaintiff is identified/identifiable in defendant's statement 3) the statement is published to others
Role of Courts/ADR
2 Roles: 1) When dispute as to meaning of contract; when breach of contract 2) Enforcement and remedies (means given by the law for recovery for a right, or of compensation fro its breach)
ACC - The Act: s 317 Proceedings for Personal Injury
317 Proceedings for personal injury (1) No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out of— (a) personal injury covered by this Act; or (b) personal injury covered by the former Acts (2) Subsection (1) does not prevent any person bringing proceedings relating to, or arising from,— (a) any damage to property; or (b) any express term of any contract or agreement (other than an accident insurance contract . . .); or (c) the unjustifiable dismissal of any person or any other personal grievance arising out of a contract of service However, no court, tribunal, or other body may award compensation in any proceedings referred to in subsection (2) for personal injury (3) of the kinds described in subsection (1)
What is Intellectual Property?
= A product of intellectual activity ("of the mind") - property = anything which can legally be owned - intangible (or chose in action) but can be dealt with like tangible property - can be used by many people simultaneously non-rivalrous
Fourth Element: Remoteness of Harm
= Legal Causation - The harm to P must not be too remote or unforeseeable from D's act/omission - Is the harm far-fetched? the LEGAL TEST = a defendant will be liable for type of damage that is foreseeable to a reasonable person (The Wagon Mound No.1 test) - The type of damage has to be foreseeable and not just directly cause by the misconduct - only the initial type of harm need be foreseen, not the extent pf degree (which may be surprising), nor the exact chain of circumstances; a sensitive or vulnerable plaintiff may nevertheless be protected
Words stated to Plaintiff 1
= Negligent mis-statement Negligent mis-statement is a more recent variation from the tort of negligent acts and omissions - Historically, plaintiffs could sue in reliance on the statement if; - it was fraudulent (tort of 'deceit') or - there was a contract involved Action of negligent mis-statement grew out of "Hedley Byrne Ltd v Heller & Partners Ltd (1964) AC 465; (1963) 2 UKHL 4
Words stated to Plaintiff II
= Statements in & around a contract - Sales talk or mere puffs contractual liability? - Terms of the contract; binding on parties "Pre-contractual" statements of fact or representations-- not part of contract but still binding?
Negligence: Definition & Examples
A duty not to be careless to another - that is, a legal duty of care which exists outside a contract or any other (e.g. equitable) relationship. Examples where law imposes duty not to harm another negligently; - product liability (i.e. manufacturer to consumer) - as seen in Donoghue v Stevenson (1932) AC 562) - road, airway and waterways users to each other - sub-contractors to building owners and others - regulatory agencies and local bodies to individuals
Doctrine of Vicarious Liability
A is liable for B's actions/omissions without any personal fault simply because of A's relationship to B E.g. B harms C, so C sues A (and B if desired) as A is responsible in law for B's actions i.e A = employer for B = employee
Employment Agreements
A number of statutory rights attach to the status of employee. ERA includes ability to bargain collectively and personal grievance rights (for dismissal and unjustified disadvantage) - Min wage & holidays legislation - May not be contracted out of although terms may be bettered by agreement - Non-employees (i.e independent contractors) receive little or no statutory protection
The Reasonableness of the Interference
A question of degree - is the discomfort or inconvenience sufficiently serious? Character of the neighbourhood - is the nuisance prolonged and not frequent? - is the persons disposition sensitive? is the socioeconomic worth of D's activity relevant?
Cause of Action
A set of criteria against which the law measures the defendants conduct before attaching liability
Copyright: Statutory list of Protected Works: Copyright Act, s.2 - Artistic Work
ARTISTIC WORK (a) means— (i) a graphic work, photograph, sculpture, collage, or model, irrespective of artistic quality; or (ii) a work of architecture, being a building or a model for a building; or (iii) a work of artistic craftsmanship, not falling within subparagraph (i) or subparagraph (ii); but (b) does not include a layout design or an integrated circuit within the meaning of section 2 of the Layout " Designs Act 1994 "Wham-O MFG Co v Lincoln Industries Ltd [1984] 1 NZLR 641" -- wooden model of a flying disc constituted a sculpture and engineering drawings of a frisbee were an artistic work
Private Nuisance
Action is designed to balance the interests of one land user against another - neighbours' rights, and duties: * A private nuisance involves "an unreasonable interference with the plaintiffs use and enjoyment of land" - It is (largely) a strict liability tort - If there is damage, the damage must still be 'foreseeable' (legal causation)
Common Law vs Statute
Actions are without prejudice to statutory remedies - Resource consents; land use zoning; environmental legislation - these may influence common law remedies but they; * exist as legal requirements in addition to common law liability * May influence elements of reasonableness e.g. in use of land in context of nuisance
5) Implication of Law
Agency arising due to status - e.g. partner in a partnership, director of a company
Agency Definition
Agency is the relationship which exists when one person has the authority or capacity to create legal relations between another person, called the principal, and a third party
Why Is Agency Important for Business?
Agents have the power to enter into contracts on behalf of the principal, which are, subject to certain requirements, binding on the principal. E.g. partner of a partnership
Termination and Redundancy
Agreement can end in various ways: - Expiry of fixed-term agreement - Justified dismissal (misconduct, incompetence, absenteeism, negligence, unsatisfactory performance) - Voluntary termination (resignation, voluntary redundancy) - Redundancy (technical redundancy (ERA, Part 6A), genuine redundancy)
Implications for Debt Repayment
Agreement to vary terms of existing contract (without consideration) is on its face not enforceable E.G. agreement to accept smaller amount that what owed; but of some other new factor introduced, or receipt given under Judicature Act, then may be enforceable - Also, promissory estoppel may be relevant if unfair
Method of Acceptance
Also silence can not be specified as valid acceptance Felthouse v Bindley (1862) 142 ER 1037 Acceptance must be complete and unconditional "after counter offer rejected, could not then chose to accept original offer as no longer existed"
Executed Consideration
E.g. - Lost doll for reward sign - Acceptance of this offer is by finding & returning the dog. The return of the dog is also consideration for the reward.
2nd Exception: Postal Rule
Applies when; method of acceptance is specified to be by post or negotiations to date have been by post and no other method specified as method for communicating acceptance (Adams v Lindsell (1818) 106 ER 250 * Effect of rule is that acceptance is deemed to have occurred at moment of posting
Employee vs Contractor - The Common Law Tests
As seen in Challenge Realty Ltd v CIR (1990) 3 NZLR 42 (CA) 1) Control: to what extent the alleged employee was working under the control of the alleged employer 2) Integration: to what extent the alleged employee was integrated into the employer's organisation 3) Economic reality: to what extent the alleged employee can be seen to have been in business on his or her own account 4) Totality of relationship
Freedom of Contract
Based on idea that contracts are consensually/voluntarily created obligations - Contractual terms is up to the parties - BUT: potential for abuse e.g. if inequality of power, then contract may be voidable
Presumptions: Domestic Agreements
Between family members - then presumption no ICLR But exceptions exist under certain statutes (Property Relationships Act 1976) - And if intention to create legal relations can be proven in the circumstances e.g Fleeming v Beevers (1994) 1 NZLR 385 Simpkin v Pays (1955) 2 AII ER 10
Common Law - Obligations/Liabilities
Breach of contract, obligations under a deed Torts Negligence, defamation, etc
Copyright: Consequences of Infringement - REMEDIES
COPYRIGHT ACT, s.120 "Infringement actionable by copyright owner"— (2) In proceedings for infringement of copyright, all such relief by way of damages, injunctions, accounts, or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right CIVIL; - injunctions - delivery up of infringing copies - account of profits or damages Criminal Liability in some cases leading to fines and/or terms of imprisonment COPYRIGHT ACT , s.131 Criminal liability for making or dealing with infringing objects— s.198 Criminal liability for making, dealing with, using, or copying illicit recordings—
Unregistered Marks:
Can be protected by - The tort of PASSING OFF - protects goodwill in trader's brand or mark from confusing misrepresentations "The Fair Trading Act 1986" - protects consumers from misleading and/or deceptively confusing get up, trade marks or logos - claim can be advanced by consumers and/or rival traders
What is a Tort?
Civil wrongs; infringement of another's legal right - wrongful acts for which the common law provides compensation - legal responsibility for certain types of injurious conduct - duty not to cause harm owed to other persons ** Torts are civil obligations non-voluntarily imposed on a particular person by the law - a person who commits a tort is called a "tortfeasor"
Second Presumptions: Business Arrangements
Commercial Agreements - Strong presumption that parties intended to be legally bound Exceptions - when agreement expressly states that no intention to create legal obligations e.g. Rose and Frank co Ltd v JR Compton & Bros Ltd (1925) AC 445
Remedies
Common Law = Debt recovery, damages Equity = specific performance, injunction, rectification, rescission Statute = Cancellation, other remedies
Promise Based Obligations
Contract - A agrees with B to perform certain promises in exchange for some form of benefit (consideration) By Deed - A enters into a legally binding promise to benefit B. B's agreement is not needed but B may enforce the deed. A will breach the contract/deed if not carry out the terms of the contract/deed to a standard set by the contract or implied into it.
Copyright: What is Copying?
Copying involves REPRODUCTION 3-step test to prove infringement by copying— 1) Causal Connection - a link between the plaintiff's work and the copy made by the defendant in that the copyright work is the source from which the infringing work is derived 2) Sufficient Objective Similarity - not exactly the same - similarity of a substantial part is sufficient 3) Reproduction of entire work or a substantial part - judged by quality not quantity - not a matter of percentages
Copyright: The Test for Originality
Copyright Act, s.14(2)— a work is not original if— (a) it is, or to the extent that it is, a copy of another work; or (b) it infringes the copyright in, or to the extent that it infringes the copyright in, another work - very low threshold - test different from patent law's requirement of novelty - work will be original if it is not substantially copied from another work - unconscious copying may infringe The "Sweat of the Brow" doctrine in NZ and Aus " Walter v Lane [1900] AC 539" "Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465" "Land Transport Safety Authority of New Zealand v Glogau [1999] 1 NZLR 261"
Copyright: Statutory list of Protected Works: Copyright Act, s.14 -
Copyright Act, s.14— (1) Copyright is a property right that exists, in accordance with this Act, in original works of the following descriptions: (a) literary, dramatic, musical, or artistic works: (b) sound recordings: (c) films: (d) communication works: (e) typographical arrangements of published editions -- definitions for the above terminology are to be found in s.2
Copyright: Owner's Exclusive Economic Rights
Copyright Act, s.16 Acts restricted by copyright— (1) the owner of the copyright in a work has the exclusive right to do, . . . , the following acts in New Zealand: (a) to copy the work: (b) to issue copies of the work to the public, whether by sale or otherwise: (c) to perform the work in public: (d) to play the work in public: (e) to show the work in public: (f) to communicate the work to the public: (g) to make an adaptation of the work: (h) to do any of the acts referred to in any of paragraphs (a) to (f) of s.16(1) in relation to an (i) adaptation of the work: to authorise another person to do any of the above acts
Copyright: Infringement by Copying
Copyright Act, s.29 Infringement of copyright— (1) copyright in a work is infringed by a person who, other than pursuant to a copyright licence, does any restricted act (2) references in this Act to the doing of a restricted act are to the doing of that act— (a) in relation to the work as a whole or any substantial part of it; and (b) either directly or indirectly;— and it is immaterial whether any intervening acts themselves infringe copyright. 2 questions: 1. has copying occurred? 2. does the copying infringe?
Copyright: What is Copying??
Copyright Act, s.30 Infringement by copying— The copying of a work is a restricted act in relation to every description of copyright work COPYING (s.2)— (a) means, in relation to any description of work, reproducing, recording, or storing the work in any material form (including any digital format), in any medium and by any means; and (c) includes, in relation to an artistic work, the making of a copy in 3 dimensions of a two-dimensional work and the making of a copy in 2 dimensions of a three-dimensional work; and (d) includes, in relation to a film or communication work, the making of a photograph of the whole or any substantial part of any image forming part of the film or communication work— and copy and copies have corresponding meanings
Copyright: Authorship & Ownership:
Copyright Act, s.5 Meaning of AUTHOR: (1) For the purposes of this Act, the AUTHOR of a work is the person who creates it (2) For the purposes of subsection (1), the person who creates a work shall be taken to be,— (a) in the case of a literary, dramatic, musical, or artistic work that is computer-generated, the person by whom the arrangements necessary for the creation of the work are undertaken: (b) in the case of a sound recording or film, the person by whom the arrangements necessary for the making of the recording or film are undertaken: (c) in the case of a communication work, the person who makes the communication work: (d) in the case of a typographical arrangement of a published edition, the publisher.
Copyright: Copyright Act, s.2 - Dramatic Work
DRAMATIC WORK includes— a work of dance or mime; and a scenario or script for a film "Fuller v Blackpool Winter Gardens [1895] 2 QB 429" -- work must be able to be performed "Green v Broadcasting Corporation of New Zealand [1988] 2 NZLR 490" -- protection does not extend to programme formats
Type of Damages
Damages for loss of enjoyment or distress may in limited circumstance be awarded. In terms of quantum: - Special damages are awarded to represent loss - General damages for losses that are incapable of quantification - Liquidate damages are when contract specified amount of damages to be paid on breach
A Defence: Contributory Negligence
Defendant may be able to argue that the Plaintiff herself was negligent and caused or contributed to her own loss - If this is successfully pleaded the judge may "split the blame" between P and D an "reduce the damage" accordingly * Contributory Negligence Act 1947
Counter Offer
Destroys original offer - But need to distinguish counter offer from inquiry or request for clarification - Conditional acceptances may be valid, depending on wording
Third Element: Factual Causation
Did D's conduct actually, in fact, cause or contribute to P's harm? The initial simple test of causation os the "but for" test E.g. "but for" the rain, you would not have crashed your car; and/or "but for" running the red light, the collision would not have occurred
Who is an "Employee"? (Statutory Definition)
ERA 2000, s 6(1): (a) means any person of any age employed by and employer to do any work for hire or reward under a contract of service: and (c) excludes a volunteer ERA 2000, S 6(2): In deciding for the purposes of subsection 1(a) whether a person is employed by another person under a contract of service, the court or the Authority (as the case may be) must determine the real nature of the relationship between them ERA 2000, s 6(3): For the purposes of subsection (2), the court of the Authority - (a) must consider all relevant matters, including any matters that indicate the intention of the persons: and (be) is not to treat as a determining matter any statement by the persons that describes the nature of the relationship
"Employee" Definition & Film Production Workers
ERA 2000, s 6(1): (d) excludes a person engaged in film production work.. ERA 2000, s 6 (1A) However, subsection 1(d) does not apply of the person is a party to, or covered by, a written employment agreement that provides that the person is an employee Idea of Employee vs Contractor seen in: Bryson v Three Foot Six Ltd (2005) 3 NZLR 721
Principle of Freedom of Association & the ERA
ERA recognises both individual and collective agreements: 1) Individual employment agreement: - Between 1 employer and 1 employee who is not bound by a collective agreement. 2) Collective agreement: - binding on 1 + unions and 1 + employers and 2 + employees - Also contains various provisions relating to recognition of unions, access to work places and the right to strike
Collective Agreements:
ERA, Part 5 - ss.31 - 50KA: Collective bargaining = the negotiating process in order to get a collective agrmnt for a group of employees ERA, Part 5 - ss.51-59C: - union (for employees) + employer(s) - binds all union members employed by the employer - must be in writing - must have an expiry date (, 3 yrs)
Individual Agreements
ERA, Part 6 - ss.60-69: - One employee + employer - Must be in writing - Indefinite/fixed term NB: ERA, s. 67: provision for trial period for 90 days or less
Fair Treatment:
ERA, Part 9, s.101-142: - ERA promotes information and mediation services over formal procedures - Principle of reinstatement as an employee remedy Personal Grievances - s.103: - Unjustified dismissal (including constructive dismissal) - Unjustified disadvantage - Discrimination - Sexual harassment - Racial harassment - Undue pressure on union membership
Good Faith Bargaining
ERA, s.4: Parties to employment relationship to deal with each other in good faith - No misleading conduct or deceit - Active and constructive contribution - Productive working relationship - responsive and communicative ERA, s.4 (1A): The duty of good faith in subsection (1) - (a) is wider in scope than the implied mutual obligations of trust and confidence
Real Property: Types of Estate
ESTATE IN FEE SIMPLE: - has no terminal date - for practical purposes, is the equivalent of absolute ownership BUT - may still be compulsorily acquired under e.g. Public Works Act 1981 - where land owner dies intestate and with no successors, land will revert to the Crown (doctrine of bona vacantia) LIFE ESTATE: - Lasts until the death of the persons to whom they are given LEASEHOLD ESTATE - In practice are regarded as interests in real property - May be created by lease or under a will
Passing Off
Elements of the cause of action— plaintiff must: 1) establish GOODWILL or a REPUTATION attached to the goods or services supplied 2) demonstrate a MISREPRESENTATION by the defendant leading, or likely to lead the ordinary purchaser to believe the defendant's business is that of the plaintiff 3) demonstrate he has suffered, or is likely to suffer, DAMAGE as a result "Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 499; [1990] 1 All ER 873 the Jif Lemon case"
Common Law
Employment agreements are contracts, plus implied terms = mutual obligations Torts: - Duty of care to provide a safe working environment - Vicarious liability
Law of Equity - Obligations/Liabilities
Equitable obligations Breach of trust, fiduciary duties
Valid Consideration
Executory: Consists of promise to do something or forgo something in the future Executed: consists of a completed action
Express Authority:
Express authority could be an example of someone having authority to sell your car - it states exactly what an agent can do.
Copyright: Copyright Act, s.2 - Film
FILM means a recording on any medium from which a moving image may by any means be produced - Web page can be a "film" as well as a "compilation" (literary work) as well as an "artistic work" - Photograph or still from a film is a separately copyrightable work
Copyright: Defences?
Fair Dealing - Copyright Act, s.42 CRITICISM, REVIEW & NEWS REPORTING— (1) fair dealing with a work for the purposes of criticism or review, of that or another work or of a performance of a work, does not infringe copyright in the work if such (2) fair dealing is accompanied by a sufficient acknowledgement fair dealing with a work for the purpose of reporting current events by means of a sound recording, film, or communication work does not infringe copyright in the work Copyright Act, s.43 RESEARCH OR PRIVATE STUDY — (1) fair dealing with a work for the purposes of research or private study does not infringe copyright in the work
Protection of Business Name/ Brand / Image
It is possible to protect— - logos - names - trade indicia - "get up" (the packaging or marketing techniques for goods and services)
Copyright: A Property Right
First recognised in England as a property right belonging to authors of books in the Statute of Anne 1709/1710 - Legislation replaced the monopoly granted by the Crown in 1557 to book publishers (the Stationers' Company) but NOY authors initial copyright term = 14 years; renewable once No copyright protection for; - Bare facts; or Basic Functional Shapes
Apparent Authority:
Flipside of the law, this means a person actually has no authority or limited actual authority. However, a third party is misled by the words or actions of the principal to believe person has authority. principal subsequently can not deny person was an agent and therefore contract is not binding on principal.
Copyright: Copyright Act, s.2 - Graphic Works
GRAPHIC WORKS - graphic work includes— any painting, drawing, diagram, map, chart, or plan; and any engraving, etching, lithograph, woodcut, print, or similar work " Johnson (PS) & Associates v Bucko Enterprises Ltd [1975] 1 NZLR 311" -- court found drawings for a lavatory pan connector to be a "graphic work"
Instantaneous Communications
General rule applies - need to ensure offeror actually receives acceptance - Rule applies for electronic communications which state that time of receipt is time communication enter information system
Multiple Causes
Genuine Cause vs Precondition/Precursor: e.g WOF given negligently on car and car crashes
Misrepresentation: Remedies
Governed by Contractual Remedies Act 1978 : If misrepresentation relates to an essential matter as agreed to by both parties or it has substantially changed bargain, then innocent party may be entitled to cancel contract & may be entitled to damages Also may have remedy under Fair Trading Act (if false or misleading statement in trade)
Fair Treatment & Human Rights Act 1993, s.21
Grounds which are outlined in HRA 1993 against discrimination: - sex (which includes pregnancy and childbirth) - marital status - religious/ethical belief - race, etc - disability, etc - age - political opinion - sexual orientation
Second Element: Breach of Duty of Care
Has the D met the standard of the 'REASONABLE PERSON' in his or her behaviour? The reasonable person test is an objective standard; - there is no defence of "I was a moron" - but nor should the defendant required to be a superman or genius - what is 'reasonable' varies on the facts of each cause
Restraints of Trade
Historically may be considered as an illegal contract as interferes with freedom of contract, but courts now will upheld in public interest and reasonable
Leave Entitlements
Holidays Act 2003 - after 12 months continuous employment, 4 weeks paid annual holidays (s.16) - time & a half pay for work on public holidays or a day off in lieu (ss 50 & 56) - sick leave: can be accumulated Health & Safety at Work Act 2015 - in force from 4 April 2016 - aims to provide for a balanced framework to secure the health and safety of workers and workplaces - no contracting out (s.28)
Consent
Idea that the contracts must be consensual, under which parties agree to incur obligations Three situations in which consent may be absent: 1) Misrepresentation 2) Mistake 3) Duress, Undue influence and unconscionable bargain
Foreseeability of Harm to Plaintiff
If there is physical harm, then damage must be foreseeable - Where the nuisance is malicious then foreseeability of harm does not matter
Illegal or Void Contracts
In NZ, Illegal Contracts Act 1970 was enacted to provide a potential remedy of contract was found to be void on the basis that it was illegal. Contracts for an illegal purpose: - Contracts to commit a tort, fraud or crime - Contracts for sexually immoral purposes - Contracts prejudicial to the nation - Contracts that interfere with the administration of justice - Contracts that promote corruption in public life - Contracts that the deprive the govt of tax
Remoteness of Damage:
In some Torts; - negligence - nuisance - other fault-based torts Only such damages as are the "reasonably foreseeable" consequences of the defendant's actions are recoverable. E.g. In Wagon Mound (No.1) (1961) AC 388 (PC) - If there is no requirement to show fault, recovery arguably only extends to any direct or natural consequence
Mistake
In some cases, Contractual Mistakes Act 1977 was passed to provide a remedy (under common law remedies were uncertain) For Act to apply: - Must be substantially unequal exchange of values under contract Court can make a wide range of orders
Copyright: An Overview
Incentive VS access Creature of statute - Copyright Act 1994 - Copyright (New Technologies) Amendment Act 2008 No formalities or registration system International Conventions-- - WIPO Copyright Treaty - WIPO Performances and Phonograms Treaty Current pressures on NZ-- - Trans-Pacific Partnership Agreement
Ownership:
Is a legal concept technically comprises: title to the property; or property in an object Can be obtained: - by purchase - through a gift - through a will (devise) - by establishment of a trust - by operation of law (e.g. mortgagee sale of land) Gives the owner the right to: - transfer ownership - use the property as security for a loan (mortgage) - retain possession and use / consume - give possession to another (bailment) - grant contractual rights over the property - commit waste - abuse or destroy the property
Memorials/Transfers
MEMORIALS commonly found on a Certificate of Title include— - mortgage - lease - easement - caveat MORTGAGE — - shows the registered proprietor has borrowed money and used the land as security for that loan - mortgages are prioritised by time of registration - creditor / lender (mortgagee) has the right to sell the land following default by the debtor / borrower (mortgagor) LEASE - leasehold estate is created by the registration of the Memorandum of Lease - is for the number of years specified in the lease - governed in respects such as renewal of the term and disposal of the estate by the terms of the lease
Torrens System: Fundamental Principles
MIRROR PRINCIPLE - the land register accurately and completely mirrors the state of the title CURTAIN PRINCIPLE - Purchasers of land are not required to look behind the title and the entries and memorials registered against it - circumstances of fraud may override this principle INSURANCE PRINCIPLE - The State guarantees that the entries on the register can be relied upon provides for compensation for any losses incurred as a result of errors in the registry
Source of Contract Law
Mainly common law - But increasingly many statutes regulate the content of contracts E.g. Credit Contracts and Consumer Act
Wages / Salary :
Minimum Wage Act 1983 - current standard min wage = $15.25 Wages Protection Act 1983 - wages to be payable in money or its equivalent - no deductions without consent - employers may not stipulate mode of spending wages - no premium may be charged for employment Equal Pay Act 1972 (also see Human Rights Act 1993, s.22)
Damages
Monetary compensation: most common remedy (apart from debt recovery) Damages are intended to represent the loss which claimants have suffered because they did not get what they bargained for Plaintiff in general will only recover damage which are not too remote (i.e): - Are losses which one would expect to occur; or - Those losses which flow naturally from the breach (normal losses); and - Other kinds of losses that should have been known or were in the contemplation of the parties
Method: General Rule
Must be communicated to Offeror and only effective when received by Offeror
Doctrine of Estates
NZ law of real estate is product of Norman political and economic system imposed on England after 1066 the "doctrine of eminent domain" holds that all land in NZ belongs to the Crown accordingly, the Crown has title to the land area of NZ in allodium: i.e. title unbounded by time or condition EXCEPT Māori customary title which, by common law, is an "encumbrance" of the allodial tile of the Crown (unless removed by Parliament) - As a result, individuals cannot own land absolutely, but can only own estates in the land (representing various amounts of time)
Acceptance:
No obligation, but no agreement until offer accepted. Method: - Depends on offer, can be orally, in writing (print or electronic), by conduct or some combination
Introductory Issues & History
Not all careless acts lead to liability; history = - no well established general principle of duty of care - by the 1930s courts recognising the need for a general duty - Donoghue v Stevenson is foundation case for modern law of negligence - subsequent expansion to liability for words as well as actions and omissions - 1970's sees introduction in NZ of statutory accident compensation scheme with significant impact
Obligations Based on a Promise
Obligations that arise out of a voluntary promise or undertaking - The purpose of the obligation is to make people liable for their promises. Also obligations may be agreed or be imposed (usually by statute) as a result of the original undertaking/promise
1) Express Agreement
Often stated and agreed orally, in writing or by deed. Must be agreed upon by all parties. In regards to deed must appoint a POA. An auctioneer in an auction house is an example of this. An insurance broker is also a type of agent
Disposition of Property
Ownership can be transferred by: - gift - deed: transfer to another while in possession - sale: e.g. sale of goods prior to delivery of possession by conferring possession on A intending to confer property in B— e.g. conferring possession on an agent, intending property to be in the principal Operation Of Law: e.g. to OA on bankruptcy
Property: Classification
PERSONAL PROPERTY dealt with under a number of different rules and statutes Sale of Goods Act 1908 Property Law Act 1952 Personal Property Securities Act 1999 REAL PROPERTY regulated by— Property Law Act 1952 Land Transfer Act 1952
Property: Classification
PROPERTY = something which a person owns; or something which is capable of being owned property can be divided into; 1. PERSONAL PROPERTY TANGIBLE: aka personalty; chattels; or goods - moveable items of property that can be seen, touched, moved and are susceptible to physical possession e.g. furniture, cars, washing machine = "choses in possession" INTANGIBLE: can be owned but ownership = a set of legal rights - unrelated to a physical entity - require legal action to be realised e.g. shares, debentures, patents, goodwill, debts = "choses in action" 2) REAL PROPERTY - Characterised by immovability - aka real estate or land consists of: - the land itself - all things (e.g. buildings) that are attached to the land - interests in land (e.g. chattels real = leases of land)
Invalid Consideration
Past: if something already happened, then a subsequent promise to pay is unenforceable:
Patents: Infringement
Patents Act 2013,s.140 Infringement by doing anything patentee has exclusive right to do BUT no infringement for experimental or investigative use REMEDIES Patents Act 2013,s.152 Types of relief available for infringement The relief that the court may grant for an infringement of a patent includes— (a) an injunction; and (b) at the option of the plaintiff, damages or an account of profits BUT lack of knowledge irrelevant to liability although no damages / ac of profits available for innocent infringement
Rylands v Fletcher (1868) UKHL 1
Physical harm caused by; D bringing substance/thing onto land likely to cause damage of it escapes (non-natural occurrence) - imposes liability for foreseeable damage caused KEY FEATURES AND LIMITATIONS Strict Liability; - no requirement of intention nor negligence (fault-based liability); BUT - accumulation must be "inherently dangerous" (or so dangerous if it escapes) - escape must result from "non-natural use" of D's land
How to Establish Legal Liability
Plaintiff in civil or criminal case must: - Be able to establish a set pf facts on which liability will be based - Evidence of the facts must be admissible in court - Facts must be proved to the relevant standard of proof - Demonstrate that the facts proved establish a legal cause of action
Nuisance vs Trespass
Plaintiff sues in NUISANCE for indirect consequential loss e.g. losses caused by inability to use the property Plaintiff sues in TRESPASS for direct harm: i.e. direct (physical) damage due to intrusion - e.g. value physically destroyed or damaged
Pre-contractual Misrepresentations
Previously, plaintiff could not sue at common law in contract for a statement that precede (but was not in) the contract BUT now, under Contractual Remedies Act,1979 s.6-- - plaintiff's right to sue in tort for misrepresentation abolished - no distinction -- words that are fraudulent/negligent/innocently "false" are all actionable - no difference in remedy between terms and misrepresentations - damages = contract measure
Fair Trading Act 1986
Principal Provision— Section 9 - "Misleading and deceptive conduct generally" No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive Elements required 1) "in trade" 2) "misleading or deceptive conduct"
Trade Marks
Registration occurs under Trade Marks Act 2002 - Unregistered marks may still be protected by— common law tort of "passing off " Fair Trading Act 1986 - covers misleading or deceptive conduct "Distinctive NOT Descriptive"
Copyright: What is Necessary and What is Not?
Required = - Creative output must come within the definition of one of the 8 kinds of WORK listed in s. 14(1) - Creator of work has to be NZ citizen, resident or company or of recognised country - s.18 - Work must be ORIGINAL "Fixation": some works must be recorded in written or some other permanent form - s.15(1) "Duration": life of the author + 50 yrs Not Required = - Registration: as the work is produced copyright protection attaches immediately - Any aesthetic elements - Quality, merit or professionalism - Morality, obscenity or vulgarity standards not usually applicable
Copyright: Copyright Act, s.2 - Sound Recording & Communication Work
SOUND RECORDING means— (a) recording of sounds, from which the sounds may be reproduced; or (b) a recording of the whole or any part of a literary, dramatic, or musical work, from which sounds reproducing the work or part may be produced,— Regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced COMMUNICATION WORK means a transmission of sounds, visual images, or other information, or a combination of any of those, for reception by members of the public, and includes a broadcast or a cable programme - technologically neutral
Trade Mark: REMEDIES
Sections 106 - 116; INJUNCTIONS interim and/or permanent injunctions are usually the principal remedies sought for breach of a registered trade mark OTHER DISCRETIONARY REMEDIES - Anton Piller (Search) orders - Major Events Management Act 2007 "John Doe" orders DAMAGES - the approach to damages is to restore the trade mark owner to the position they would have been in had the infringement not occurred - account of profits is an alternative remedy, based not on the loss of the plaintiff but the profit made by the defendant
Certificate of Title
Show: - Identity of land (surveyed location) - type of estate (e.g. fee simple) - encumbrances on estate (e.g. easements, covenants, mortgages) - caveats - 1998 - computerisation of data base of land titles - 2002 - no longer any "outstanding certificates of title" - 2008 - copy of CT may only be obtained electronically (licensed e-search or internet ordering system) - 2009 - electronic lodgement of dealings with land
The International Labour Conventions (ILO)
Since 1919 the ILO has maintained and developed a system of international labour standards aimed at promoting decent work.
Duty of Care: Summary
So duties of care must be owed to individuals or classes of persons without 'piggy backing' on proximity of others. But there can be independent duties owed to more than one person/group e.g. rescuers & nervous shock cases Summary = the plaintiff must prove: 1) a close or PROXIMATE relationship between the parties 2) the court will ask are there any policy factors which negate or restrict (or even strengthen) finding a duty which otherwise may exist?
Form
Some contract have to be in writing to be enforceable e.g. - Property Law Act - Dispositions of land must be in writing and signed by person making disposition to be enforceable - Contracts of guarantee
General Defences
Specific defences are available in respect of each specific tort: - inevitable accident - "acts of god" - waiver (revocable at will) - illegality - limitation (in time) - Limitation Act 2010 - Statutory authority - release by deed
Plaintiff as the Object
Statements made by one person to another e.g. adviser-advisee; seller-buyer
Now Civil Liability Can be Created by Acts/Statutes
Statutes can also give rise to civil liability - In the business area, a number of Acts supplement the powers of the regulatory agency with a right to sue for damages. E.g. Fair Trading act and obligations on merchants under it
Categories of Intellectual Property
Statutory: * Copyright: Copyright Act 1994 * Trade Marks: Trademarks Act 2002 *Patents: Patents Act 2013 - Designs Act 1953 - Plant Varieties Act 1987 - Layout Designs Act 1994 Common Law obligations - breach of confidence (protects confidentiality in information) - passing off (protects unreg trademarks & other trade indicia)
Classes of Torts
Such duties are designed to obtain for persons certain benefits falling within certain broad classes: - personal integrity (physical and reputational) - property (real, personal and intellectual) - protection from fraud - protection of certain economic interests - benefit of statutory duties
The "But For" Test
The "But For" test is crude: it a) only requires that D's negligence was a cause of P's harm, not the only cause nor the Principal or Dominant cause b) does not distinguish between culpable and non-culpable cause c) does not really assist where there are multiple likely or possible causes of P's harm
What is Consideration
The "Price of the Promise" - Can be an act -Or forbearance - Or the promise thereof Price: Not just money
First Element: Duty of Care
The 'Duty of Care' acts as a 'control' or legal 'filter' of liability, otherwise the courts are concerned that liability would be unlimited; this is referred to as 'opening the floodgates' - The first issue is to be determined in 'Proximity' = the relationship in law between the parties
Breach of Duty of Care: Risk Allocation Factors
The court in deciding the appropriate standard will look at factors: 1) Probability of harm 2) Gravity of Risk: the greater the damage, the more care is required 3) Circumstances within D's knowledge may affect the risk: The greater the danger, the more care is required - awareness (by Defendant) of special vulnerability or weakness of Plaintiff must be taken into account 4) Social Value of Activity: emergency services come within this category e.g. fire, police, ambulance
Third Party Rights
The effects of agency on third parties depends on whether the agent was acting for: - A disclosed principal - An unnamed principal; or - An undisclosed (concealed principal)
Vicarious Liability
The general rule is that people are responsible for their own acts and omissions. In certain circumstances, one person can be liable for the conduct of another = vicarious liability Common situations where vicarious liability arises; employer and employee, school and teacher, directors and company with which they are identified as representing its directing mind and will
Implied Authority:
The idea that there is a written or oral agreement that the agent has the power to sell a car, also means that they have the authority to do anything necessary to carry out the express authority. implied authority means they can do what necessary to achieve the purpose.
Ownership & Possession
The most basic of all the various property rights is "ownership" ownership and possession are NOT the same thing - not all legal owners have a legal right to possession - BUT no property objects are permanently without an owner actual possession versus legal possession— "Parker v British Airways Board [1982] QB1004; 1 All ER 834"
Intention to Create Legal Relations
The parties must have intended their agreements to be legally binding. The courts must rely on certain established presumptions - TWO Key presumptions
Liability
When A breaches an obligation consequences arise which are called liabilities B may have a cause of action, however: - Will generally need to prove some harm suffered - Depending on cause of action, may have to prove intention - Some cause of action arise from common law and other statute/Acts
Specific Torts
There are 3 main types of common law or judge-made obligations - 1) Obligations based on agreement (contracts) 2) Equitable obligations (trusteeship, fiduciary duties) 3) Obligations in tort not to wrong/cause harm to legal stranger - negligence - trespass to land - nuisance - liability for statements (negligent mis-statement, defamation)
Supervening Cause (novus actus interveniens)
There may be a new cause that "breaks the chain" of causation between D's conduct and P's harm - accordingly, the defendant is not liable There are 3 types of supervening causes - 1) a natural event 2) an act of a third party 3) an act of the plaintiff
Policy Factors Affecting Duty
These factors may relate to social fairness or economic efficiency of risk allocation: - insurability of risk - liability of regulatory authorities - public bodies' liability (really the taxpayer or ratepayer who 'foots the bill') Other factors encouraging or discouraging duty - legislative background - contractual background
Joint and Several Liability
Tortfeasors are "joint" if the act comprising the tort is; - committed as a joint act: OR - one for which both or all are reasonable Two or more joint tortfeasors are each separately liable for the entire damage resulting from the tort Examples of joint & several liability: - a person who instigates another to commit a tort and the person who then commits the tort - persons who take concerted action to a common end and who commit a tort in the course of executing that shared purpose
Trade Marks: Registrability
Trade Marks Act, s.18 Non-distinctive trade mark not registrable (1) The Commissioner must not register— (a) a sign that is not a trade mark: (b) a trade mark that has no distinctive character: (c) a trade mark that consists only of signs or indications that may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, time of production of goods or of rendering of services, or other characteristics of goods or services: (d) a trade mark that consists only of signs or indications that have become customary in the current language or in the bona fide and established practices of trade
Trade Marks:
Trade marks only exists for the goods/services within the class in which it is registered and not across the board - Any "person" (including company & etc.) can seek registration - To be registrable under the Trade Marks Act 2002, a mark must: - satisfy the definition of a trade mark under s 5(1); and - under s 13(2), must not be prevented from registration by any * absolute grounds (set out in ss 17-21); or * relative grounds (set out in ss 22-30)
Types of Nuisance
Traditionally, there must be and 'emanation' Emanation = - right to view? - blockage of light? - visual amenity?
Memorials / Transfers -
Transfers of Land can be accomplished by - - Transmission - By survivorship - To executors or administrators - Sales - Inter vivos gift - Trust - Operation of law
The Offer
Two main requirements 1) Certainty; and 2) Intention An offer is a statement made by one party of the terms on which they are prepared to do business, made with the intention that if it is accepted there will be a binding contract.
Real Property
Two or more persons may own indivisible interests in the same property; in such cases each owner's interest covers the whole property Types of ownership - JOINT TENANCY - all owners have a single indivisible interest - unequal interests are impossible - when a joint tenant dies, their share passes to the surviving joint tenant(s) TENANCY IN COMMON - each tenant has a divisible share - shares can be equal or unequal - share of deceased tenant in common will pass under the provisions of the will or the rules of intestacy
The 'Special Relationship' today
Types: (5) 1) plaintiff is in contract with defendant = liability in contract (and negligence) 2) plaintiff and defendant have communicated directly or indirectly-- (a) auditors/accountants and buyers of companies Dimond Manufacturing v Hamilton [1969] NZLR 609 (b) bankers/credit advisers and inquirers "Hedley Byrne v Heller" 3) defendant knows plaintiff will rely and act on the advice because of the purpose rule-- (a) valuers/surveyors and purchasers of property- purpose = why was the valuation etc. done? (b) company auditors/accountants and individual shareholders or investors 4) plaintiff who ought to be foreseen by defendant due to custom or defendant's special knowledge 5) defendant has no liability to a merely foreseeable plaintiff
Trespass
Unjustified direct intrusion onto P's land - on, above or underneath (cranes, overhanging signage, drilling, low-flying aircraft in your airspace) - Harm must be immediate and direct - No proof of harm required DEFENCES: 1) Necessity 2) Consent 3) Statutory Authority
3) Operation of Law
Used to be popular in historic times, useful in an emergency situation where a person may act on behalf of the principal and the principal is held liable for the actions of the nominated stand in
Who is an "Employee" ERA 2000, s 6:
Various common law tests are used to determine the real nature of the relationship - * Intention test * Economic reality or fundamental test * Control test * Integration test * Industry practice
Indefeasibility of Title: Land Transfer Act 1952, s.63
What amounts to Fraud? - not statutory defined - means some kind of dishonesty - requires "actual knowledge" - mere knowledge of any trust or unregistered interest is not fraud (s.182) Exceptions to Indefeasibility: - a registered proprietor's title is not protected against the omission or mis-description of a right of way or easement (s.62(b)) - a registered proprietor's title is not protected with regard to any portion of land that is erroneously included in the . . . certificate of title, . . . by wrong description of parcels or of boundaries (s.62(c)) " Public Works Act 1981" gives powers of compulsory acquisition of land to govt depts and local bodies " Insolvency Act 2006" provides that, on adjudication, the OA is entitled to all property owned by the bankrupt
Copyright: Infringement by Copying
What must be proven— 4-part cumulative test; 1) there is a work in which the copyright can subsist; and 2) copyright does subsist in the work; and the plaintiff owns the 3) copyright in the work (s.120(1)); and 4) copyright in the work has been infringed
Existing Contractual and Public Consideration
When a person has entered into an agreement to do something which that person has already agreed to do under: 1) An existing contract: then no consideration for second agreement, so agreement is not enforceable e.g. Stilk v Myrick (1809) 2 Camp 317 - BUT more recent decision have recognised that the second agreement is enforceable if genuine attempt to resolve difficulties (William v Roffey Bros (1991) 1 QB 1, 1 ALL ER 512) 2) A public duty: then no consideration for second agreement, so agreement is not enforceable - BUT if go beyond the public duty, then likely enforceable e.g. Glasbrook Bros Ltd v Glamorgan County Council (1925) AC 270
4) Ratification
When an agent has authority only over signing contracts on behalf of the principal for a certain amount e.g. $20k but signs a contract over an agreed amount & therefore principal can decide if they aren't bound - principal however can honour this which is ratifying. Ratification is quite common in business
Causation:
Where Tort is actionable: 1) only on proof of actual damage (e.g. negligence); or 2) if damages are sought for a particular loss - plaintiff must prove, on balance of probabilities, that tort caused or materially contributed to injury or damage Where tortious acts by two or more persons combine to produce damage, each act constitutes a cause of the damage, and each person is liable in full to the victim = "joint and several liability" - Where several persons cause seperate damage to a person, each tortfeasor is liable only for amount of damage which he caused
Divisible vs Indivisible Loss
Where it is impossible to divide up loss between multiple negligent defendants involved in causing/contributing to P's loss, then the loss is INDIVISIBLE Where it is possible to divide up the loss among the defendants, P must sue all of the defendants and recover the corresponding damages for each portion of harm - this loss is DIVISIBLE
Duress, Unconscionable Bargain and Undue Influence
Where one party is victim of unfair treatment: forced to sign contract against will, influenced to sign contract due to power imbalance or unable to give true consent due to significant impairment, disadvantage or disability, then contract may be voidable
Solutions to Multiple Causes Problem
Where there are defaults by several person, ALL may be concurrently liable (so individual defendants may not excuse themselves by using the 'but for' test) - Likewise, if the single cause is impossible to find, multiple defendants can be found liable for the "coming together of harm"
Misrepresentation
Where there has been an untrue statement of fact made before a contract is entered into; and - Statement is made by or n behalf of one contracting party; and - The statement does not become a term of the contract; and - It induces the other party to ender into contract and upon which is relied
Public Nuisance
Where there is an interference with the rights of the public's use of land - Generally, damage is suffered by the local community as a whole rather than by individual victims - Claim usually advanced by the Attorney-General (Attorney General v PVA Quarries Ltd (1957) 2 QB 169
Words stated to Plaintiff 1
Why the reluctance to impose liability for negligent words? - words are VOLATILE and travel far fast - Damage is usually PURE ECONOMIC loss - Unfair to compensate plaintiff when they have NOT PAID for advice from defendant (should be a contract) - Did plaintiff CAUSE THEIR OWN LOSS through lack of care? - valuation of loss difficulties - Overlap with other torts (e.g. defamation)
Remedies
damages - variables are: extent of financial harm defendant's behaviour and degree of intention seriousness of statement and degree of damage to reputation misconduct by plaintiff extent of publication whether defendant has retracted and apologised injunction (rare) correction order
"Truth"
defendant (not plaintiff) must prove what was said/written was substantially true the "sting" of the statement must be true multiple statements - the court looks at the whole publication
