The Legal System of Australia - Assignment Example

Name Course Lecturer Date of Submission Business Law Question 1 The main source of law in the legal system of Australia is the legislation which provides for the legislative powers of the common wealth (Bede 267). Legislation or the statutes refer to the acts or laws that are made by the parliament as a legislative body. The Australian legislation system may be passed to either limit or over-ride the common law where the amounts of damages that can be awarded are limited to a certain cap as per the legislated states. Ideally, the parliament delegates the legislation to government departments, local councils, or statutory authorities. These legislations are only applied by the administrative decision makers and not by either the judges or legal practitioners. Case law or judicial precedents are another source of law, which essentially entails laws made by the judges (Bede 267). It emerges from the judicial decisions of those cases that judges have been confronted with before and the corresponding rulings, which then become applicable to all cases of a similar kind thereafter. The decisions that were made by those judges are applicable as rules or precedent that lower courts judges are obliged to conform to (Bede 269). This is the essence of the doctrine of judicial precedent. The legal principle that ensures judges conform to judicial precedent is known as stare decisis. The prior cases can be classified as reported or unreported, reported cases are published in a series of law reports and are deemed as important because their judgment is applicable in other subsequent cases. On the other hand, unreported cases have insufficient decisions as the case fails to provide any new precedent. Question 2 David, a financial analyst offering financial advice to clients in shares investment under the influence of alcohol announced that shares of Telstra would sky rocket. His statement influenced Hui and other golfers in the bar to invest in the shares of that company but the shares price dropped contrary to David’s announcement. However, Hui cannot invoke any of the negligence provisions to sustain a case against David based on the statement that he made concerning the shares. This is because Hui had an obligation to evaluate the situation or circumstance under which the statements were made and apply due diligence before using them to make his decisions. In this respect, Hui is in fact guilty of contributory negligence because he placed himself in a predicament that he knew could lead to loses. In addition, David’s position as a financial consultant does not guarantee that every that he says must always be true. Furthermore, he cannot be held accountable for any negligence because of the fact that he was intoxicated when making the announcement. In Donoghue v Stevenson, Justice Lord Macmillan held that Negligence duty, breach, and causation are the elements of negligence that must be established in every case (Chen-Wishart 515). In the case of David and Hui, the breach of duty does not have any direct correlation with the causation per se. Furthermore, the doctrine of violenti non fit injuria bars Hui as being eligible for any damages that might be awarded because he willingly placed himself in a situation where the loss to be incurred was foreseeable which brings up the concept of assumption of risk. However, the doctrine of contributory negligence overrides the concept of assumption of risks. For instance, if the plaintiff invested his money knowing the announcement was not anything to go by and then suffers loss as a result, contributory, or comparative negligence would be more appropriate than risk assumption (Chen-Wishart 516). The fact that David made it clear that he had friends in Telstra amounts to negligent misrepresentation because the false statement lured other parties to buy shares from Telstra. This is because the falsified information is a statement of fact and not an opinion. In the Misrepresentation Act of 1967, negligent misrepresentation, the person receiving the negligent misrepresentation should prove that he/she relied on the misrepresentation up to the time the contract was made and had a reasonable ground to act. In Gordon v Selico 1986 it was held a misrepresentation can be orchestrated by conduct or words and that someone would be held accountable for misrepresentation more so in Contracts of Uberrrima fidei or where fiduciary relationship between the two parties subsists. However, misrepresentation will only make the contract voidable and not void ab Initio. Hui can therefore sue for damages on the grounds of misrepresentation. The exclusion clause would have exempted David from any losses that the investor might have incurred if it could clearly be seen from the business cards that he gave and does not purport to exempt David from breaching any fundamental obligations that he ought to oblige to in his contractual terms. As it was espoused in Darlington future Ltd v. Delcon Australia party Ltd, the meaning of any exclusion clause is confined to the natural meaning of the words therein with explicit reference to any implied terms. However, if the exclusion clause had been construed in accordance with the natural meaning of the wordings therein and reflected some degree of ambiguity, then the rule of contra proferentem will be applied (Jones 168). This implies that the clause will have to be construed against that party which imposed it to be part of the exclusion clause. Moreover, the clause will still be valid as it is made clear from the onset before the formation of any contract as it was held in Olley V Malborough. The fact that the clause states that the advice is given without responsibility remains the prerogative of David's clientele to decide whether they should go by his words and invest their money or rely on information from other sources. The other party will experience any benefits enjoyed thereafter such as skyrocketing of shares while any losses will be suffered without raising any claims of negligence against David. This was as held in Canada SS Lines Ltd v The King. Question 3 Peter and Phil are brothers who were involved in an agreement where Phil, an acupuncturist would treated Peter's shoulder, which got injured as he was unblocking the pipe. However, in the formation of any contract, there ought to be the doctrine of the intention to create legal relations and any contracts that may tend to undermine this doctrine are considered as null and void. However, domestic agreements such as spouses or siblings are not legally enforceable since they can level down to sheer absurdity as this was held in Balfour v Balfour. This is because of the presumption that arguments made in domestic or family contexts are not legally binding since arrangement that exist between family members can not be set up in terms of legal consequences and the promises can only amount to enforceable obligations. Other contracts made between family members can question the contractual intention and should then be scrutinized before intent to create any legal relations is considered (Jones 170). The contract between Phil and Peter is therefore Prima facie null and void. The exceptions are during pre-nuptial agreements or when a relationship. However, where any good or substantial amount of consideration has been given in a domestic contract, the idea of creation of legal relations may be rebutted. Lord Denning stated this in the ruling of Hardwick v Johnson. This means that contracts established in family dealing can therefore be legally binding depending on the merits of each case and may be enforceable where significant resources have been involved in the contract. Lord Brereton J also observed a similar ruling in Ashton v Pratt 2012. Courts therefore look how the parties conducted themselves in the contractual dealings and adjudicate whether any ordinary person in a similar predicament would intend to enter into a contract. Going by the fact that Phil left his well playing job and flied to Australia to treat his brother establishes the creation of legal relations as well as a legally enforceable contract as the resources and the consideration involved is significant (Koffman, Laurence and Elizabeth 159). This therefore rebuts the doctrine of domestic contracts not having to create legal relations and establishes a contract between Peter and Phil. On the other hand, Phil will not be entitled to any money after the treatment he administered to Peter because the consideration involved in this contract is regarded as past consideration. Past consideration refers to any benefits that have been given prior to the contract being made (David and Martin 107). The contract between Phil and Peter is a unilateral contract, which inherently binds the party, which makes the first promise. On this note, the other party will only provide his part of the consideration only after he/she has acted in accordance with the contractual terms and obligations. The legality behind this concept is that any promise made to make compensation for benefits, which have passed, is unenforceable because it will be treated as a gift and one cannot be morally obliged to pay for a gift's value. In Roscorla vs. Thomas, it was held that past consideration does not have any legal value and hence cannot be used in the event of claiming damages. The only exception is when the two parties had contemplated repayment before making the contract (Bloom 55). The fact that Phil gave acupuncture treatments in 2013 which should be paid for will not be viable as that was done before any contract was formed between them. This is therefore past consideration and will not be enforceable because consideration should be promised only for a present contract. The only instance where a court will permit past consideration is when there has been an occurrence of an uncommon scenario where parties to the contract had received some benefits or gains from the mere reliance of the terms of the contract. This is also known as the doctrine of promissory estoppel, which prevents the litigants from taking any action that they are obliged to take in the course of preempting any inequitable results. Works Cited Bede, Harris. A New Constitution for Australia. London: Routledge, 2013. Print Blum, Brian A. Contracts: Examples & Explanations. New York, NY: Austin: Wolters Kluwer Law & Business, 2007. Print. Chen-Wishart, Mindy. Contract Law. Oxford: Oxford University Press, 2012. Print. David W and Martin Davis. Sourcebook on Contract Law. London: Cavendish Pub, 2000. Print. Jones, Lucy. Introduction to Business Law, Oxford: Oxford University Press, 2013. Print Koffman, Laurence and Elizabeth Macdonald. The Law of Contract. New York: Oxford University Press, 2010. Print. Read More