Judiciary as a Referee - Essay Example

? Judiciary as a Referee Number: May Question one The constitution vests the judiciary with the powers to resolve legal disputes that arise between individuals, both natural and juristic persons, and between individuals and government officers. These powers are exercised by the judges of the various courts in New Zealand. It is an independent organ of the government that is free from interference and/or direction of any other purpose. In addition, independence applies internally to the judges, meaning that no judge should influence the decision of another judge. It plays the role of a neutral arbiter, or a referee in any dispute before it, by applying the law as it is to the facts before it. The judiciary is vested with the powers to interpret the law. The Supreme Court is the court of last resort as far as interpretation of the law is concerned. The duty of the court is to interpret the statute law from parliament, to affect the purpose and intention of the parliament. The judiciary cannot make law. If the parliament is not satisfied with the way the court interprets the law, it can make law to quash the court’s interpretation. As a referee, it is the judiciary’s role to determine who should do what, or which state of affairs should prevail in any dispute that is presented before it, that is, it makes decisions. In essence, it arbitrates disputes that arise over facts and law. In doing so, the judiciary should apply the law, and should not let the personal opinion of individual judges or their bias to influence the outcome of the court. Everyone should be treated equally before the law, and it should act without fear or favour. The New Zealand legal system is an adversarial one and, therefore, the judge’s duty is just to hear cases presented by both sides, and plays minimal role as far as evidence adducing is concerned. To add, they should not make law or policy that should be a reserve of the parliament. The judiciary has a role to enforce the law both the civil and criminal, and entrench the rule of law. The judiciary applies both the statute law of New Zealand, common law, specific Acts of UK parliament that still applies and the subsidiary law. The judiciary ensures that other arms of government do not violate the law, by holding any act done in breach of the law as ultra vires. In doing so, the court can never question the validity of the Acts that have been passed by parliament. The court has jurisdiction to look into administrative decisions of public officials to ensure that they observe the law. The courts role is to ensure that the public officers execute their mandate in good faith, without malice, and pursuant to the law. In R v Somerset County Council, ex parte Fewings [1995] 1 All ER 513, 524, stated that any action taken by a public official must be justified by a positive law. The court also has a duty to enforce and uphold personal liberty and human rights that are enshrined in the law: to wit the New Zealand Bill of Rights Act 1990 and the Magna Carta 1215, which still applies in New Zealand. Therefore, it is the courts duty to enforce human rights and to prevent the government from abrogating human rights. In Attorney General V Chapman [2011] NZSC 110, the court held that the bill of rights does not apply to the judges in discharge of their duties. It relied on the common law protections under the judicial immunity to render New Zealand Bill of Rights’ remedies available for breach of rights by the New Zealand judges nugatory. Nevertheless, the judiciary, as a referee, it should not make laws. In essence it does, through the doctrine of precedence. For instance, the court in Fitzgerald v Muldoon [1976] 2 NZLR 615), made a decision that is considered to be part of the constitutional law. In this case, the court held that the Prime Minister had no powers to suspend law. He stated that sentiments made by the Prime Minister to that effect were contrary to the bills of right of 1688 that prohibited public authorities from suspending the law. Through the doctrine of precedent, the decision made by a superior court on a point of law binds lower courts which should apply the decision in as far as the facts are similar to the case that has already been decided by the superior court. In conclusion, the courts primary role is to act as a neutral arbiter in case any dispute arises. It should only be seized of a matter that has been brought before it by the parties. Its role should be primarily to interpret and apply the law. Word Count 788 PART A The Bill of Rights 1688 (UK) is regarded as part of the unwritten constitution of New Zealand. It is applied by the Imperial Laws Application Act 1988 at schedule 2, which applies the Title and Preamble, section 1 [as amended by section 62 of the Juries Act 1825 (6 Geo 4, c 50)], and section 2. It regulates the relationship between the citizens and the state, by stipulating the rights that accrue to the citizens, and which requires the state to observe these rights. To add, it sets the limits on the powers exercised by the crown. It entrenches the sovereignty of parliament, inculcates the freedom of speech in parliament, and establishes the supremacy of the parliament over the sovereign. It provides for regular elections to parliament, and the rights of the people to petition the crown without fear. The court has on several occasions applied the provisions of the For instance, in Fitzgerald v Muldoon [1976] 2 NZLR 615), the court applied this Bills of Right of 1688 to find that the prime Minister had no powers to suspend the law. Word count 188 PART B The scenario raises the questions whether there was existence of an enforceable contract between the parties, resulting from the various communications that took place. For a contract to exist there must be an offer, acceptance of the offer and exchange of consideration between the parties. The offer is an expression of willingness to enter into a legally binding contract. It can be oral or written. It specifies the terms that shall apply should the offeree accept the offer. In Harvey v Facey [1893] UKPC 1, the court held that in order to amount to an offer, the offeror must have the intention to be bound. An offer must be distinguished from an invitation to treat. In Carlill v Carbolic Smoke Ball co [1893] 1 QB 256, the court held that an invitation was a mere puff, designed to attract offer. In Partridge v Crittenden (1968) 2 All ER 425, the court held that advertisements are generally invitation to treat and not an offer. An offer can be terminated in several ways. Of essence, an offer can terminate upon lapse of time. This happens if the offeror states the deadline for the acceptance of the offer and such time lapses before the acceptance has taken place. Secondly, the court in Dickinson v Dodds (1876) 2 Ch. D. 463 held that the offeror can withdraw the offer at any time before the acceptance has taken place unless a deposit has been made. The offeror had no obligation to keep the offer open, because the offeree has made no consideration for the promise. To add, an offer lapses if a counter offer is made. A counter offer arises where the offeree does not accept the terms of the offer and seeks to vary them. Any variation of the terms of the offer automatically revokes the offer. If the offeree accepts the offer, a contract arises. The offeree must communicate their acceptance. In Felthouse v Bindley (1862), it was held that silence cannot amount to acceptance. Acceptance must be clear and unqualified. With regards to this scenario, the ‘bed-wanted’ advertisement amounted to an invitation to treat and not an offer. It is Israel who made the offer to Jemima to sell his bed for $ 500. However, on August 1, and before acceptance of the offer by Jemima, he decided to terminate the offer. Consequently the offer was revoked. This is regardless of the fact that Jemima had decided to accept the offer, because the acceptance was not communicated, and hence the rule in Felthouse v Bindley (1862) shall apply. Therefore, Jemima has no course of action. The second communication raises issues of instantaneous communication. The communication of 27th by Israel to Mickey that he would sell the bed for at least $ 500 did not amount to an offer because the terms were not clear. In Harvey v Facey (1893), the court held that an indication of the minimum price does not suffice as an offer. It is the communication by Mickey that he would buy the bed for $ 550 that is the offer. Consequently, Mickey is the offeror. Mickey communication that he would treat the offer accepted if he received not communication to the contrary cannot suffice, because communication of acceptance must be communicated by the offeree. On the contrary, Mickey communicated non-acceptance of the offer, which terminated the offer. Mickey can refuse to sell without liability. Word count 566 PART C This scenario captures the law of agency. Agency operates whereby one person, called the principal, instructs another to act on their behalf. Hence, the acts of the agent bind on the principal, who is responsible for legal relationships that the agent enters in pursuance of that relationship. However, the ability of the agent to bind the principle exists so longs as the actions of the agents are within his authority. An agent has two types of authority: actual and apparent. In Freeman and Lockyer (A Firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 the court held that though the two are separate, they co exists. An agent has a duty to the principle to the principle to act within his instructions. Anything done by the agent above his authority is ultra-vires and should not bind the principle. In this scenario, Rebecca’s authority was limited to the purchase of floor. Therefore, the company would only be bound if Rebecca had apparent authority to act. However, since Joseph had never dealt with the two before, apparent authority shall not materialize. Rebecca, as an agent shall be personally liable in this case. This is because she has misrepresented her authority to Joseph to induce him into the contract. Joseph has a cause against her for breach of warranty of authority. This was held in Collen v Wright (1857) 120 ER 241). Liability in this case is strict, and the state of the agent’s mind does not matter. Word Count: 247 Question 2: total word count=1001 References Case Law R v Somerset County Council, ex parte Fewings [1995] 1 All ER 513, 524 Attorney General v Chapman [2011] NZSC 110 Fitzgerald v Muldoon [1976] 2 NZLR 615) Harvey v Facey [1893] UKPC 1 Carlill v Carbolic Smoke Ball co [1893] 1 QB 256 Partridge v Crittenden (1968) 2 All ER 425 Dickinson v Dodds (1876) 2 Ch. D. 463 Felthouse v Bindley (1862) Freeman and Lockyer (A Firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 Collen v Wright (1857) 120 ER 241) Read More