Government of South Australia - Assignment Example

Answers 1) There are many laws in South Australia that would come in defense of Thad, in the given case, as it is beyond any doubt that he was in no way at fault. The focus here would be on the Laws having utmost relevance in this particular case, and whose provisions could be invoked by Thad, in initiating legal proceedings against Mick and Bobcatte. Firstly, Thad could initiate legal action against Mike, according to the aspect of “negligence”, enumerated in the Civil Liability Act 1936 of South Australia. As per this act, “negligence” is defined as any act of omission or commission by a person, causing injury, loss or damage to another person. (1) (Legal Services Commission of SOUTH AUSTRALIA, March 2010). In this particular case, the damage caused to Thad is attributable to an act of commission by Mick, and which was diametrically opposite to the given set of instructions by the former. Thad just needed a quote for the earthmoving job, and he never made any mention whatsoever of immediately carrying out the job (earthmoving). The fact that Mick acted in conformity with the instructions of Thad, and that it was Bobette who misinterpreted the communication from Mick, is not of any concern to Thad. Secondly, Thad is also empowered to file a suit against Bobette, by invoking the provisions of “trespass”, as elaborated by the Summary Offences Act 1953. This Law describes “trespass” as any act by a person, in entering on to the land of another person, without any valid authorization or invitation. As per this Act, the aggrieved party is enabled to carry out legal proceedings against the trespasser, to recover compensation for any damage caused by them (trespasser). (2) (Legal Services Commission of SOUTH AUSTRALIA, ND) In the case, Thad had to face a rather huge loss, on account of the unauthorized earthmoving operation of Bobette, as he lost the highly lucrative offer from Australian Conservation Council. As mentioned earlier, the communication gap between Mick and Bobette can in no way be used to prevent Thad from claiming damages, as throughout the course of all the events related to the case, he (Thad) was always specific in his communications with Mick. 2) In this particular case, Bobcatte has very limited options for seeking relief through legal recourse, as well as for claiming the amount of its account. As a matter of fact, this aspect of the case involving Bobette and Mick signifies the most intricate facet of the case. Both of them acted in utmost good faith and the communication gap is attributable solely to the circumstances prevalent during the first telephonic talk between Mick and Bobette. In fact, the chances of Bobcatte recovering the amount due towards its account are practically non-existent, for the never did Mick make any mention of carrying out the actual earthmoving job. Even in the event of Bobcatte initiating any proceedings against Mick, the latter could very well get evidence from his email service provider, in the form of the communication sent by Mick, to Thad, which speaks only about a quotation having an estimate. And the question of Bobcatte being in a position to file a suit against Thad does not even arise, for there was never any interaction between both the parties. However, the scenario is not entirely grim for Bobette, as she can invoke some provisions of the Contract Law in at least minimizing the compensation payable by her to the other two parties. At this juncture, it is worth making a note of the point that, Mick could classify his telephonic conversation with Bobette as an oral contract, and in support of the same, he can very well present a copy of his email to Thad speaking about the quote. Additionally, he could also refer to this statement “big money in the job” to back his contention that, that indeed is a valid unwritten, oral contract. As per the stipulations of the Contract Law, it is not mandatory for the issue in question to be in written format to be considered as a valid contract. This Law states that only contracts related to sale of land and insurance should be compulsorily present in the written format. A provision of the Law states that the parties to a contract should be giving genuine consent and also expressing the intention to adhere to the terms. (3) (Government of South Australia, 2009). There is chance for Bobcatte to defend itself by proving that the last-mentioned two aspects (genuine consent and intention) were not present in this contract, owing to some circumstances surrounding Bobette at the actual time of entering into the contract. For this purpose, the evidence produced by Bobcatte could comprise of the report from the department of meteorology stating that there indeed was a heavy storm in the location, where Bobette was present while conversing with Mick. The testimony by the mobile phone service provider confirming weak signals at that given moment, along with concrete proof that she was in the midst of an earthmoving operation while attending to the call, would also be of immense help to Bobcatte. 3) Owing to the related facts of the case, Thad is not in a position of strength for filing a suit against the Australian Conservation Council (ACC), though he could invoke some provisions of the relevant laws. The written communication between ACC and Thad is not tantamount to a valid contract. In a legally binding contract, the aspects of both offer and acceptance need to be fulfilled within the reasonable timeframe, and in this case, it was more than three weeks after receiving the offer from ACC that Thad mailed his letter of acceptance. At this point, a brief look at the objectives and activities of the Australian Conservation Council is more or less necessary for developing a thorough understanding of this particular angle of the case. The Australian Conservation Council, propelled by the primary objective of safeguarding the natural environment of the country, operates in the diverse regions of the country. In this case, it is the Conservation Council of South Australia (Conservation SA) that has made the initial offer to Thad, as his land comes under this particular zone (South Australia). The Conservation SA, a non-profit organization, is constituted of well over fifty member groups striving relentlessly in addressing the various key issues pertinent to environmental preservation, and providing solutions to the same. (4) (Conservation Council SA, 2010). About twenty years back itself, the Australian Government initiated many measures aimed at conservation, with not the least amongst them being purchase of private lands that have vegetation. In fact, it is this very initiative that facilitates non-profit entities such as Conservation SA in endeavoring to acquire land areas from private parties, so as to safeguard the flora and fauna present there (on those lands). (5) (Garry Smith, 2006). Coming back to the case, it has to be noted that the council came forward with its initial offer solely because of the presence of abundant vegetation on the land owned by Thad. And this very point was specifically mentioned in its (council) first communication to Thad. Conservation SA is in no way related to all the intricacies that have surfaced between Bobcatte, Mick and Thad, as the council is a non-profit one functioning with a specific objective that is in full accordance with the overall national interests. Another highly vital point in favor of the council is, the letter sent by it to Thad, informing him about the withdrawal of its offer owing to the intentional destruction of vegetation, precedes the one sent by Thad conveying his acceptance of the offer. The Law of the Land fully recognizes the fact that the only interest the Council has in the piece of Land is preservation of the natural vegetation, and it Conservation SA is no way driven by any commercial motives. As discussed earlier, the offer from the Council did not receive a prompt acceptance from Thad, and well before he could give his consent, the conditions based on which the initial offer emanated were no longer existent. In light of all these facts that are of paramount relevance in this particular case, the chances of Thad being able to successfully carry out legal proceedings against the ACC or Conservation SA are very bleak. 4) As per the Law in Australia, there are certain stipulations for the pattern in which the names of the parties involved in legal cases need to be mentioned, and that the same needs to be meticulously adhered to warrants no special mention. When the party in question is an individual, it is just their last name that needs to be mentioned. Also, it is mandatory that, in all official documents, the name of the case should always be specified in the italicized format. Likewise, when the parties are companies, firms or any other entities, their full names have to be specified. Here, the Rule 10 speaks about the pattern to be adopted in mentioning names of entities that are a bit lengthy. The Rule lays down specific guidelines for abbreviating these names. Last but not the least, in the event of multiple plaintiffs or defendants, the name of just the first one needs to be mentioned (6) (Kristin Walinski, April 2009). The focus would now move to understanding the manner in which the names of plaintiffs and defendants are mentioned, as per the contents discussed above. Firstly, if Thad initiates legal action against Mick and Bobcatte, the ensuing case would be mentioned as either “Thad v Bobcatte” or “Thad v Mick” . Secondly, if Bobcatte files a suit against Thad and Mick, the related case is specified as either “Bobcatte v Thad” or “Bobcatte v Mick”. Lastly, any action in the law courts by Thad, against ACC, would be stated as “Thad v Australian Conservation Council”. The Magistrates’ Court is of the lowest level in the South Australian hierarchy of the legal system, and all legal disputes first begin in this court. The court deals with matters involving damages to the tune of $80,000 attributable to motor vehicle mishaps, and with other general issues dealing with claims whose value is not more than $40,000. In the case in question, all legal proceedings would begin in the Magistrate Court of South Australia. But here, a careful observation needs to be made of a very important point. (7) (Interceder, ND). Thad intends to initiate a legal action against both Mick and Bobcatte claiming damages to the tune of $41,000, and also the Australian Conservation Council for the $30 million. In both these eventualities, the monetary value of the amounts in question is much higher than those that are covered by the purview of the Magistrates’ Court. Hence, for these two purposes, the proceedings need to start in the district or supreme courts attached to the region of Adelaide. These two courts are empowered to deal with issues having a relatively higher commercial value. (8) (COURTS ADMINISTRATION AUTHORITY SOUTH AUSTRALIA, ND) 5) The last of the facets pertaining to this case would be examining the angle of the entire vegetation being cleared on Thad’s land, and whether or not the same would be tantamount to any offence by him (Thad), as per the Native Vegetation Act 2010 (SA). Before dwelling into those details, it is of utmost importance to be having a brief glance at the Act. The Native Vegetation Act 2010 (SA) is driven by the all-important objective of preserving the vegetation native to South Australia. The Act encompasses both the public and also the private lands under its purview. It (The Act), along with providing wide-ranging incentives to landowners who contribute towards this cause of preservation, also imposes severe penalties on violators. (9) That the earthmoving operation on Thad’s land destroyed all the vegetation, whose safeguard is taken care of by this Act, is an irrefutable Act. In addition, the facts related to the case vividly speak of Thad’s intentions to clear away all the vegetation. Notwithstanding all that, Thad still cannot be brought to book, owing some relaxations provided by the Act. The Act specifically states that, its definition of vegetation does not include any plant that is sown voluntarily by the landowner, and without being obligated by any law to do so. And the fact that Thad himself, intentionally and voluntarily, has grown the plants warrants no special mention. In light of all that, Thad would not be confronted with any complications as per the Native Vegetation Act 2010 (SA), excepting the fact that he lost a highly lucrative offer from ACC, courtesy the destruction of vegetation by Bobcatte. Here, it won’t be out of place in noting that, apart from the aforesaid, there are few other exemptions of the Act, such as those dealing with contingencies such as firebreaks, where it becomes indispensable to destroy the vegetation. (9) (Legal Services Commission of SOUTH AUSTRALIA, May 2010). Sources 1) Legal Services Commission of SOUTH AUSTRALIA, March 2010. NEGLIGENCE. Retrieved from lawhandbook.sa.gov.au/ch01s02.php. 2) Legal Services Commission of SOUTH AUSTRALIA, ND. TRESPASSERS. Retrieved from lawhandbook.sa.gov.au/ch30s08.php. 3) Government of South Australia, 2009. Contract Law. Retrieved from sa.gov.au/subject/Business,+industry+and+trade/Licensing+and+regulation/Contract+law. 4) Conservation Council SA, 2010. About Conservation SA. Retrieved from conservationsa.org.au/about.html. 5) Garry Smith, 2006. The Contribution of Biodiversity Conservation on Private Land to Australian Cityscapes. Retrieved from isocarp.net/Data/case_studies/828.pdf. 6) Kristin Walinski, April 2009. Legal case Citation. Retrieved from suite101.com/content/federal-case-citation-a113398. 7) Interceder, ND. Magistrates’ Court of South Australia. Retrieved from interceder.net/list/Adelaide-Magistrates-Court. 8) COURTS ADMINISTRATION AUTHORITY SOUTH AUSTRALIA, ND. magistrates court. Retrieved from courts.sa.gov.au/courts/magistrates/index.html. 9) Legal Services Commission of SOUTH AUSTRALIA, May 2010. Native Vegetation Act 1991. Retrieved from lawhandbook.sa.gov.au/ch18s05s02s02.php. (Kindly note that, in my system, the “footnotes” feature is rather complicated and it would take time for me to understand it. As it is, there has been a lot of delay, from my side. To elaborate more, the footnote entry of first page is being reflected on all the pages. Hence, I have added endnotes after the concerned paragraphs) Read More