Australian Legal System - Assignment Example

Law can generally be defined as structures of rules and regulations that are set out in a communityto encourage or deter certain behaviors that may lead to disharmony and instability in a community. The importance of law in society cannot be over emphasized more so because of the nature of life and the human being. Given the fact that resources are scarce and human beings have an innate instinct to amass as much by any means, law becomes a vital component to harmonious living. It is important to add that for a law to be termed as such it has to be readily available to members of the public as well achieve a level of consistency in terms of what is to happen in the event of a dispute and particularly how to go about resolving the dispute. More to that, law sets out procedures on how things should be done, who should be involved and so on and these procedures apply to all people who are governed by that law. Moving away from the basics, this paper shall be guided by questions regarding the Australian legal system so that a clear understanding of the various implications of their legal system is demonstrated. Question 1 Do common law, the courts and the doctrine of Precededent continue to serve the useful function in the regulation of business conduct and the resolution of business disputes Alternatively, should all business resolution be subject to legislation The Australian court system is similar to that of Britain as it was a British colony. It mainly uses the common law and the statute. The statute is made by the legislation while the common law follows the doctrine of precedence which is borrowed from a Latin phrase stare decisis which translates to "the decision says" or simply the rule made by previous judges. The doctrine of precedence is not constituted so much on the ideal decision made but rather the principles that guided the arrival to that decision. (Gilford and Gilfford, 1983,p5). As pointed out, not all law follows precedence and this is where statute law comes in. legislation allows for codification so that common law may be altered to set new precedence and also suit with the current needs of the community. The Australian court system is categorized into 3 distinct courts namely the high court (supreme courts) the county courts and the magistrate courts. The Supreme Court is the highest court in the land and has jurisdictions to listen to cases of appeal and also handle cases of high profile say constitutional challenges and interpretation. The magistrate courts are the lowest courts and handle civil and criminal cases of lighter nature. Given the fact that the doctrine of precedence prevails in the Australian court system, the magistrate and distinct courts are bound to follow rulings of the higher court where two cases are similar in fact and circumstance. This means that a lower court cannot be able to overrule precedence. On the other hand, the high court has the jurisdiction to overhaul previous precedence if it feels that it is outdated and therefore set new precedence. Common law has its strengths and weaknesses. For example, it has the advantage of setting a pattern of handling disputes hence one may be in a position to predetermine a court ruling just by studying previous rulings. As noted, any law should have consistency and common law provides for this. In the instance where no similar case has been handled before, common law gives room to set precedence. It also assists judges arrive at a decision faster and hence save time and acquire sound mind since previous reasoning used by judges is at the center of common law. Common law has played a major role in maintaining regulation of business conduct through setting out remedies to business misconduct, negligence and damages and as such has acted as a deterrent to stop individuals from repeating similar mistakes. Legislation plays a pertinent role in business resolution to disputes and perhaps should always be the basis upon which remedies are found. However, not all resolutions can be subject to legislation as it takes a great deal of time and procedure to formulate. In most cases there will be new issues that the legislation has not covered before in which case business resolution through legislation may not apply. Therefore common law and the courts can come in to bridge the discrepancy. One major weakness of common law and precedence is that it is inflexible. The rulings of previous judges may be erroneous or inconsistent with the changes witnessed in society. Circumstances change as well as ideals of society and precedence fails to evolve with that. Question 2 The case of Luke and Mad Fish Pty Ltd is a classic example of the law of contracts. Before delving into the issues of the case it is worth while top first mention the various aspects concerning contracts. A contract by definition is and agreement or promise that is arrived at by two or more persons and which is enforceable by law from one party against the other. This is according to Gillies (1988, p1). Importantly however is that not all agreements are contracts but all contracts are agreements. In order for a contract to be valid, binding and enforceable it has to have various elements. For instance, it must follow the rule of offer and acceptance. This implies that there must be intention and consent to enter into contract. An offer is an invitation to be party to an agreement proposed by one party to another. The offer must be communicated in clear format and reveal all material facts pertaining the contract. The other party (offeree) must then carefully consider the terms of the contract and if in agreement communicate acceptance of the contract to the offerer within the stipulated time when the offer stands valid. It is important to note that offer and acceptance may be communicated verbally or in writing either openly through signing of the agreement of by implication. After the offer and acceptance has been completed then the contract becomes legally binding. This means that one party has stands to lose or benefit if the other breaches the contract. Another important point to note is that a binding contract has to depict some kind of performance of the obligations stipulated in the contractual agreement from one or both parties in other words what is known as consideration. Consideration can be either monetary, time, commitment among others so that there is seen a kind of give and take between the parties to a contract. Intention to enter to contract is another element that constitutes a valid contract. This aspect is often tricky to determine seen as it is people often do not voice such intentions. It is therefore up to judges to determine whether such intentions existed but analyzing events and evidence surrounding a dispute. Without verifying an intention to enter into contract then a contract is not valid. Family agreements often require proof beyond reasonable doubt of intention to be bound by contract (Carter & Harland, 1993, p 175) but business agreements are relatively easier to prove. In the case of Luke and Mad Fish Ltd there may or may not have existed a contractual agreement between them by implication. From one perspective Mad Fish had an obligation to supply fresh fish to The Haven Restaurant during functions in good time given that they had a long standing relationship in business. It is because of this implied agreement that Luke ordered $10,000 worth of shellfish from Mad Fish Ltd for the important function on 1st of March. He has thus made an offer to Mad fish and in return by implication, Mad fish has accepted the offer to provide the shellfish needed for the big day. In the case of Brogden v Metropolitan Railway Co (1877) 2 App Cas 666 it was held that acceptance can be made verbally and/or conduct. A contractual agreement therefore exists between the two parties. In light of this Mad Fish was obliged to fulfill the order by the said date failure to which there would be a breach. On realizing that the order may be impossible to accomplish, the sales manager decides to communicate this to Luke beforehand so that he can source the fish elsewhere and avoid suffering loss. This he does by writing Luke an email communication the constraints and turning down the offer. Therefore at this point it may be safe to say that there was no contract formed because offer was rejected on grounds of inability to source the shellfish from its supplies. In the rulings of Adams v Lindsell (1818) 106 ER 250 and Cowan v O'Connor (1888) 20 QBD 640 acceptances occurs when and where the acceptance is posted in appropriate cases and in this case offer was turned down. As provided for in the sale of goods contract law the goods in question must adhere to the goods description quoted by the purchaser cite the case of Re Moore and Landauer [1921] 2 KB 519. A few days specifically on 27th of February, after discharging the contract and on not receiving any response from Luke, a faithful customer the sales manager at Mad Fish decides to source the shellfish from another supplier although at a higher price and deliver the consignment on 29th February at 12 noon to Luke prior to the day Luke had indicated in his offer i.e. 1st of March. Luke by all means refuses to accept the goods much less pay for them as he had already purchased them locally eluding the risk of going without shellfish on the material day of the function. Luke only acted like the business man he was and reasonably. The drastic step was warranted because going by the mode of delivery i.e shipping followed by air transportation, any game of wait and see would be imprudent as business was at stake. Luke stands a high chance of winning this case by claiming that there existed no contractual agreement with mad fish because he turned down his offer. He on the other hand cannot sue Mad fish for breach of contract as he has not suffered any financial loss during the time which swales manager sent his email. The situation would have been different if Mad fish had not sent that email and delivered the fish on 29th February at 4.00 pm. this is because it amounts to breach of contract. A breach occurs when one party to a contract fails to comply with terms stipulated in the contract. In that case Luke would be in a position to sue Mad fish for damages as he failed to deliver the contract in good time causing him distress and lost time. Mad fish may want to claim that they acted upon the fact that Luke failed to acknowledge receipt of the email and commitment to satisfy its customer hence delivery. However, as cited in the case of Vitol SA vs Norelf Ltd [1996] 3 All ER 193 before the House Of Lords, it was held that silence is as much acceptance to rejection as it is in writing or verbal. Luke can exonerate from any consequence on this ground and may claim Mad fish actions were preemptive. If Mad fish had sent no email and shipped the delivery to Luke but the shellfish was destroyed by fire on board an aero plane prior to delivery then the contract could be termed as frustrated in which case neither Mad fish nor Luke would be responsible for damages. According to Barron & Fletcher (2000, p 284), in case a contract is destroyed following its creation but prior to is completion, and through accidents that are of no fault to either party to the contract, it amounts to frustrated contract. Question 4 Harry and Sally are in a predicament that most individuals find themselves in many times in life. It is expected that when taking a holiday and putting up in a hotel recommended by a friend ones stay should be relaxing and joyous. Another assumption that people make when paying for a good or services say transport, hotel service, beverage, food and such like is that the provider of the good or service has taken all the necessary steps to ensure the end user of the product or service. By offering the hotel accommodation to Harry and Sally the Royal hotel had a duty to ensure that the occupants of that hotel enjoy their stay and provide security to them and their property to the best of their ability. In return the guests of the hotel paid for the service as compensation as determined by the hotel management. This is the ideal situation and mostly our normal way of thinking. However, there is a twist to the case of Harry and Sally Vs Royal Hotel in that the hotel had clearly detached itself from accepting any responsibility for any damages, loss or injury whatsoever irrespective of any circumstance. The hotel was very categorical on this stance and went a step further to ensuring that all the walls in the parking lot, the hotel room doors and the corridors had clearly written posters headed Terms and Conditions highlighting all the liabilities and obligations of the Hotel. This step is taken to imply that al the visitors who decide to stay at the Royal Hotel have read the terms and conditions of the hotel and accepted the terms in order to put up in the hotel. On the other hand Harry and Sally believe that the hotel management is a responsible body and have the safety and security of its clientele at heart. Therefore, does a contract exist between the two parties and is it enforceable Harry and Sally lost a lot due to the negligence of Hotel Royal management and therefore they may have a case if they can prove before court that the thefts and the damaged car could have been avoided if only the management had been responsible and not careless. On grounds of negligence supported by case of Esso Petroleum Co Ltd v Mardon [1976] 1 QB 801 the court ordered Esso petroleum to pay Mardon for the financial loss he incurred in damages. Another case in point that illustrates the obligation of Royal hotel; to provide safe environment is the case of Donoghue v Stevenson [1932] AC 562. Mrs Donoghue purchased a bottle of ginger beer which before consuming it noted a decomposing snail at the bottom. Even though she had no grounds to sue for damages against the manufacturer under the then privity of contract, she was awarded compensation even though no contract existed between the two. This is because lord Atkin of the House of Lords found that in the interest of the public and the consumer the manufacture was in tort for putting their safety in harms way. This set new precedence on the obligation of manufactures and service providers to ensure care to their consumers. On the other hand the management at the hotel may get out of this by claiming that Harry and sally acted in an ignorant manner and as they say ignorance is no defense. They had clearly stated the companies terms and Caveat Emptor should have guided Harry and Sally during their stay. Even in the event that is was an employee at the hotel who stole the pictures, the hotel would still have strong grounds to escape liability since in the terms and conditions they advice clients to be careful and state clearly that it shall not be liable whatever the circumstance, theft by employees included herein. The situation would have been different if an employee at the hotel was the one who accidentally gave out the wrong key to someone else who then stole the pictures since the as a client at the hotel Sally and Harry had no say in recruiting employees for the hotel and relied entirely on the expertise of management to pick employees that were experienced and were well trained to ensure that such cases never happen. The employee would be responsible for negligence and by association; the hotel would be liable to pay Harry and Sally for their loss even though they had stated they would not be responsible for any loss whatsoever. References Carter, J. W. & Harland, D. J., 1993, Cases and Materials on Contract Law in Australia 2nd ed., Butterworths, NSW. Gifford, D. J. & Gifford, K. H. (1983). Our Legal System 2nd ed., The law book company Ltd., Sydney. Barron, M. L. & Fletcher, R. J. A., 2000, Fundamentals of Business Law 3rd ed., McGrew-Hill Book Company Australia Pty Ltd., NSW. Read More