Judgment of Australias Highest National Court - Case Study Example

1-A: The Albert River Ferry precedent is the most authoritative, since it represents the judgment of Australia’s highest national court and is binding in all Australian jurisdictions. The Worldwatcher precedent is binding only in Victoria, and has only persuasive authority in Queensland. 1-B: Jones v Albert River Ferry Co (1912) 6 CLR 27: Jones entered the ferry wharf by passing through a turnstile which would permit passage only after he deposited his fare; he thus demonstrated his intent to enter into a contractual relationship with the ferry company. A large sign positioned above the turnstiles indicated that fare was payable upon entry to the wharf, even if the person entering the wharf did not in fact board the ferry. Mr. Jones was held liable for paying the ferry fare even though he was not able to take the ferry. The court ruled that a large sign positioned so that it would be prominently visible to customers before they deposited their fares in the turnstile constituted adequate notice of the conditions of the contract between the ferry company and its customers, even if Mr. Jones had failed to read the sign. Starbo v Worldwatcher Ltd (1999) VR 372: Mr. Starbo downloaded software from the Worldwatcher Ltd. Web page by clicking on a “download” link. While Worldwatcher included a notice on their Web page that downloads of software were subject to their terms and conditions, and provided a link so that visitors could view these terms and conditions before downloading, the notice and the “view conditions” link were positioned below the download link. The court ruled that in this case that notice of Worldwatcher’s terms and conditions had not been effectively given—presumably because a user typically reads a Web page from top to bottom, and thus at the time when Mr. Starbo elected to download the software, he had not yet been made aware that the download was subject to these conditions. Since notice had not been effectively given, the terms and conditions were not binding on Mr. Starbo. 1-C: There is no contradiction between these two precedents if they are properly understood. The key element here is time—the sequence of events leading up to the creation of a contractual relationship. In Jones, the court ruled on the basis that a hypothetical “reasonable person” would see the sign listing the ferry company’s terms and conditions before depositing his/her fare, and thus that Jones’ failure to read these terms and conditions did not constitute a valid cause for releasing him from his contractual obligations. The same “reasonable person”, however, would come across the download link on Worldwatcher’s website before having seen the company’s notice regarding terms and conditions, and thus would be likely to download Worldwatcher’s software without knowing that a license agreement applied. 1-D: Unlike Worldwatcher Ltd., Bigsound Ltd. put a notice of the existence of their terms and conditions for downloading their software at the top of their Web page, with the actual link to these terms and conditions at the bottom of the page. Assuming that (A) this notice was adequately prominent on Bigsound’s Web page, and (B) the link to the terms and conditions was functional and reasonably easy to locate and use, a court would most likely apply the Jones precedent here (extending it to apply to a new medium, and to conditions available but not immediately visible) and distinguish the Starbo precedent, and thus find that Ms. Tolmie is obligated by the terms of Bigsound’s license agreement. Just as in Jones, a “reasonable person” in Tolmie’s position would see the notice of terms and conditions before coming to the download link on Bigsound’s Web page. The fact that the actual terms and conditions were on a separate page, and that the link to this page was on the bottom of the screen, is not persuasive—since once a “reasonable” customer has been made aware that terms and conditions apply, s/he can be held responsible for having read and understood them even if s/he in fact did not do so. 2-A: Don’s status as a public servant is irrelevant in this matter, since his duties at the Department of Defence have nothing to do with wildlife conservation or national parks; thus he is to be treated as an ordinary private citizen, and not as an “authorized person” under the Act. Further, Don’s stepping on a frog conformed to the definition of “taking” given in the Act’s dictionary. However, Don can successfully defend himself against any charge brought against him under Section 17 for the frog’s killing, on the basis that (A) the frog’s death was unintentional, and occurred in the course of a fully legal camping trip undertaken with no intention to harm wildlife; and (B) as the frog’s killing happened in the evening, he did not see the frog and thus had no reasonable chance to avoid stepping on it. Under Section 19 of the Act, these facts constitute a defence to a Section 17 charge. The only circumstance under which Don might be found guilty of killing the frog would be if a witness came forward to testify that Don did see the frog in advance, had the opportunity to avoid it, and decided to step on it anyway. 2-B: For Karen to be guilty of an offense under Section 18 of the Act, the Act’s language must be interpreted in such as way as to broaden its literal meaning in two important ways. While one of these extensions-by-interpretation might be justified under the Mischief Rule or the Acts Interpretation Act, the second extension seems unreasonable at best. Karen might argue that under the doctrine of ejusdem generis, her party’s fishing rods fell outside the scope of Section 18, which lists a series of implements which can be used for capturing land-based creatures but says nothing about fishing equipment. However, Section 1 of the Act sets out the Act’s purpose as the preservation of wildlife, with no such limitation as to habitat; and the included dictionary’s definition of “taking” clearly includes fishing as one of the prohibited activities. Thus under the Mischief Rule, or at least under the Acts Interpretation Act (which mandates interpretation based upon legislative intent even absent ambiguous language), the possession of fishing rods in a national park should be considered as forbidden under the Act. On the other hand, in order to convict Karen of a Section 18 offence, the state must show that the Barker River several kilometers from the point where it flows into Barker National Park constitutes a “road, track or path leading to the National Park”, and thus should be treated as part of the Park under Section 18 and the Act’s dictionary. Given the facts of the case, such an interpretation seems wildly exaggerated. Had Karen and her friends been caught near the boundary of Barker National Park piloting their boat towards the park itself, it would be reasonable to apply the Mischief Rule or the Acts Interpretation Act to show that in this case the river was being used constructively as a “road, track, or path leading to the National Park”. Clearly the dictionary’s extension of the term “National Park” to include incoming roads and paths is intended to permit the authorities to apprehend people about to enter the park carrying prohibited hunting equipment; it would be unreasonable to exclude incoming rivers and streams from consideration in this regard. However, Karen and her friends were not caught near the boundary of the park; further, they were already fishing (presumably at anchor, or in any case not drifting in a rapid current) when they were caught, indicating that they had no clear intention of proceeding into the park itself. If the prohibition on possession of equipment to be used in taking wildlife in national parks is extended according to a literal interpretation of “roads, tracks and paths leading to the National Park”, any road in Australia could be considered a part of the national park system—as one can eventually get to any national park from any road in the country. Such an interpretation would clearly lead to an absurd result; and thus this interpretation fails the Golden Rule test. Karen should thus contest the charge and be acquitted. Read More