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Lecture

LWB145 Lecture Notes - Week 11.docx

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Department
Law
Course
JSB171
Professor
Unknown
Semester
Spring

Description
LWB145 Week Eleven Lecture Notes Legal Personality and Capacity Objectives and Weekly Readings  Purpose of lecture is to introduce you to some basic concepts of legal personality and capacity, and the problems that lay at the edges of these neat categories.  In the tutorial we will be given a topic and some readings and will need to write an essay plan.  As for readings, there is no one ‘good’ chapter or article that covers the whole topic.  For the tutorial question regarding animals, indigenous people and the elderly, see pages 167 – 168 of the Study Guide.  Where the tutorial question says ‘should be granted legal personality’ it should be read as ‘should be granted full legal capacity’. What is Legal Personality and Capacity?  “Personality” = the quality, character or fact of being a person as distinct from being a thing” (Oxford English Dictionary).  Legal persons – those recognised by the legal system as capable of having rights and duties and taking part in litigation.  Includes all natural persons, and groups such as corporations and ‘bodies politic’ – governments of nations and States.  But not all legal persons have full legal capacity – that is, they may be recognised for some legal purposes but not others.  Even those who have capacity may lack ‘standing’ to sue in some cases – need a special interest to sue for breach of duty to the public in public nuisance, admin law. Human Individuals  Are legal persons in domestic systems of law.  Human individuals can enter contracts, own property, sue or be sued, give evidence in court etc.  But we will consider below the limits the law has placed on the legal capacity of some human persons. Women Is gender a factor in legal personality and to what extent is this now only of historical significance? Women and entry to university  Have women always had equal access to university education?  Jex-Blake v Senatus of University of Edinburgh (1873)  Sophia’s enrolment at medical school accepted with condition that women taught in separate classes.  Some professors refused to teach her.  Court held regulations admitting women to study at university were illegal.  Differences in mental and physical conformation.  “Ornamental parts of education”. Women and professional practice entitlements  Women as “non-persons”.  Re Edith Haynes (1904) 6 WALR 209  Edith sought to be admitted to practice law in WA in 1896.  Legal Practitioners Act said “any person”.  Court held – “civilized world” not suggest right of women to be admitted – women not “any person”.  Re Kitson ([1920] SASR 230  Mary wished to become a notary public in SA in 1920.  Public Notaries Act said “any person”.  Court held – woman not “any person”. Minors  Can human beings of any age exercise the same rights and obligations under a legal system? Age of Majority  S17 Law Reform Act 1995 (Qld) - age of majority changed to 18 from 21.  What are the consequences of attaining majority? Minors and Contracts  Contracts generally not enforceable against a minor.  Exceptions:  Beneficial contracts of service e.g. employment.  Contracts for necessaries e.g. Mercantile Credit v Spinks – car necessary for minor who was a salesperson. Unborn Children  Is an unborn child a person?  Watt v Rama [1972] VR 353 – unborn child is not a legal person but once born there is a relation back period  S292 Criminal Code – when a child becomes a human being.  S313 Criminal Code – killing unborn child. Civil Liability of a Child  Can a child be sued in tort law?  No minimum age for tortious capacity.  Standard of care takes account of age, experience and intelligence.  McHale v Watson – 12 year old not liable for throwing metal rod injuring plaintiff’s eye.  Griffiths v Woods – 6 year old not contributory negligent for riding bike in front of semi-trailer. Criminal Liability  Can a child be liable in criminal law?  Presumptions about formation of criminal intent (s29 Criminal Code (Qld))  Under 10 – irrefutable presumption that can’t commit a crime.  10 – 14 – rebuttable presumption that can commit a crime.  Over 14 – age of full criminal responsibility.  S17 Juvenile Justice Act 1992 (Qld): child under 17 dealt with separately by police, courts. Elderly People  Australian
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