Commercial and Corporations Law - Justice McCardie in Prager v Blatspiel - Essay Example

Commercial and Corporations Name Course Date 1.0 Introduction From a general perspective and in a continuum, the extreme legal system that countries have is either a common law or civil law. Common law is a judge made law and is dependent on judge’s interpretation of the applicable statutes, defence & prosecution presented and the precedent set earlier to deliver justice among others. In this approach, the judge/ bench of judges have a greater bearing on the finality of the case. On the other hand, civil or codified law is dependent on written codes and prosecution department and the judge (s) have to rely on these codes to determine the finality of the litigation. In common law, the role of judiciary is extensive and they have that will of going outside the existing frameworks so long as their judgements are within the supreme law which is constitution. (Papadopoulos, 2004, p.3). Common law (judge made law) presents a two edged sword. This implies that the same set of legislation under common law can be interpreted differently and thus, works in ones favour or against (World Bank, 2011). Justice McCardie in Prager v Blatspiel and other 1924 kb 599 conceptualises common law as follows “The object of the common law is to solve difficulties and adjust relations in social and commercial life. It must meet, in so far as it can, sets of fact abnormal as well as usual. It must grow with the development of the nation. It must face and deal with changing or novel circumstances. Unless it can do that, it fails in its function and declines in its dignity. An expanding society demands an expanding common law”. The aim of this essay is to interrogate later statement by showing if it fits in Australia’s legal system especially when there is another source of law (statutory law). 2.0 Contextualising the Statement To accept or reject this statement of how Justice McCardie conceptualises common, it is critical to understand the critical elements that are embedded in his understanding of what common law ought to be. The first is to solve difficulties and adjust relations in social and commercial life. In a normative point of view, this statement is applicable to all systems of law (common or civil law) either in Australia or any other country (Agotness, 2009, p.146). The reason for saying in a normative point of view is based on the fact that in objective point of view, the ruling elites have used legislations to attain the opposite by having draconian rules so that they can perpetuate impunity and self preservation. Equally, the later is not true for Australia since the country is a democratically governed and ranks high among those that adhere to human rights principles (CIA, 2012). Thus the discussion will concentrate on the former part (normative point of view). The second critical factor in his conceptualisation is the ability of common law to take care of abnormal issues and the usual issues. McCardie states that “….It must meet, in so far as it can, sets of fact abnormal as well as usual”. The third aspect or critical element that emerges in his statement is dynamism. Justice McCardie states that “….It must grow with the development of the nation. It must face and deal with changing or novel circumstances. Unless it can do that, it fails in its function and declines in its dignity. An expanding society demands an expanding common law”. From the above, it emerges that in his conceptualisation three critical points are integral to common law. It is these points identified here which will be used for subsequent discussions on how they fit into Australian legal system when there is a statutory law. 3.0 Analysis and Discussions on the Statement 3.1 Solving Difficulties and Adjust Relations in Social and Commercial Life To solve difficulties and adjust relations in social and commercial life, one aspect that judges have embraced in delivering justice is on the basis of bad faith/ good faith. These two concepts have been applied in contractual agreements, insurance laws and trade mark laws. Common law in Australia has advanced this approach so as to avoid basing litigation on legal technicalities alone, but also on practical issues and morals. Bad faith actions includes ill will or deceit in order to gain unfair advantage, sinister motives and withholding of information so that one could inflict revenge or subvert the course of justice. It is indeed true that if judiciary is to achieve its purpose of transmitting justice to both parties, then the intention of both the plaintiff and the defendant should be taken into consideration (Carsley and Shacter, 1997, p.241). To show how courts in applying common law concept has enhanced this concept. The paper will use an example of bad faith in trade mark application in Australia as a means of solving difficulties in commercial relations. One of the applications for trade mark that has been rejected in Australia based on the bad faith concept is the Marvel Characters, Inc v Gary Charles (Unreported); 14 September, 2011. The bone of contention here was the mark of Ghost Rider. In a chronological manner, Gary Charles applied for trade mark licence for Ghost Rider under class 25. His application went up to the stage of acceptance only for Marvel character, Inc, who owns comic book character known as Ghost rider opposed the application. Before the application, the mark in contention had been used in a latest movie filmed in Melbourne. This movie starred worldwide known actors like Nicolas Cage. Moreover, the usage of the mark was with the express permission of Marvel Character Inc. This meant that the mark had gained more exposure and international fame (Marvel Characters, Inc v Gary Charles (14 September, 2011) cited in Marvel Characters, Inc v Gary Charles (2011). The plaintiff which in this case was Marvel levelled the following evidence. The first evidence was based on trade mark search and private investigator work. During the search it was established that the applicant has a known record of making numerous applications. The application the defendant usually make are for the already established brands in the world like beat down, red bull and army of. Moreover, the private investigator showed exhibit that proved that the defendant (applicant) was selling numerous imitated garments in his Queensland shop. These garments were branded with spider-man and marvel superheroes marks. The more tying evidence in this was the ability of the investigator to do a purchase that incriminated the applicant. In this instance, the private investigator managed to buy men’s and women’s denim shorts from the applicant’s shop that had the ghost rider mark yet he was not authorised to use the same (Marvel Characters, Inc v Gary Charles (14 September, 2011) cited in Marvel Characters, Inc v Gary Charles (2011). Apart from just using the ghost rider mark, it was observed that the mark was placed in different parts of these clothing’s. The parts that identified were swing tags and sew in labels in unusual flaming type script. These labels were a kin to the marks used by marvel in their comic books and other promotional materials. Further, the applicant’s decided to holistically borrow the symbol of a rider with a flaming skull riding a motorcycle which was equally the same as that used by the plaintiff in their comic book series. This line of development was used to counteract the defendant’s argument that he had liked the character and that he did not unlawfully use marvel’s ghost rider symbol (Marvel Characters, Inc v Gary Charles (14 September, 2011) cited in Marvel Characters, Inc v Gary Charles (2011). In making the judgement in favour of the plaintiff, the justice noted the following observations. The first is that the evidence levelled by the plaintiff such as previous known record of the applicant (defendant) of making application for already existing marks and the evidence obtained from the clothing he had sold provided the registrar with sufficient ground to note that the application was done in bad faith and thus, had to be rejected (Marvel Characters, Inc v Gary Charles (14 September, 2011) cited in Marvel Characters, Inc v Gary Charles (2011). 3.2 Dynamism The statement by McCardie advocating for dynamism in common law system fits within the Australian context even if there is a written statutory law. Sometimes, the relevant authority discharged with the role of making legislations might not be proactive enough in repealing various sections of the law that are not in tandem with human needs. These do happen even when parliament has received numerous feedbacks from the justice delivery authority, interested stakeholders and other legal experts. In the absence of legislations being proactive, the other available platform of realising the same is through common law/ judge made law where the bench would not only deliver ruling based on statutes, but also on best practices and precedents set elsewhere in the country or abroad (Hazard Jr. and Angelo, 2006, p.62). The issue of dynamism forms one of the distinguishing features between common law and civil law. Common law does not embrace comprehensive compilation of rules & statutes and thus most work are shouldered on judicial decisions (Scott, 2008, p.344). The emerging issue then is that under this approach, judges have huge role in delivering justice based on the facts presented to him by the prosecutor. To show how this fits in Australian context especially when there is existing statutory legislation, the paper will use the concept of “implied terms” to affirm justice McCardie observation. Section 35 (6) of the Copyright Act of 1998 states that works developed by an employee under a contract of service or apprenticeship is owned by the employer unless given situations apply. In addition, the Design Act of 2003 states that employer shall have the right of being registered as the owner of a design created while in the course of employment or serving under contract unless it was agreed in prior to the contrary. The best case example of implied term can be drawn from the hotly contested petition by the Western Australia University against their former employee Mr. Gray in September 2009 where the courts overturned the belief as enshrined in these two Acts stated above. University of Western Australia as the appellant disputed the awarding of Dr. Gray as the rightful owner of invention since he utilised time and resource of the university when he was their employee. The case contention was centred on the intellectual property development by academics. In brief, Dr. Gray was mandated in his contract to teach and conduct research. Apart from the above Gray was based at Royal Perth Hospital. In addition he had an interest in research and Development Company through which he invented and obtained a method of treatment of liver cancer. In court findings, it was noted that he had prior to being employed at the university conceived the ideas and thus university’s contention of the invention being developed in the course of the work was rejected. This ruling has brought a new concept that any invention made by the employee belongs to him and not the employer unless it was stated in the contract or the person was paid to do so. In a nutshell, this observation affirms the call by justice McCardie that common law should be proactive. 4.0 Conclusion The statement postulated by justice McCardie fits within the Australian context especially when there are other statutes in numerous ways. From the above discussion, it emerges that to enhance relationship between various entities in Australia, the court has tried to advance best practice approaches without necessarily basing cases on legal technicalities alone. For instance, application of bad faith concept is a critical example of how courts have tried to enhance relationship between commercial entities in contractual agreements. The second is based on the example of dynamism where courts have decided to be proactive in delivering justice in relation to changing situations without waiting for legislature to update the same in statutory frameworks. One approach that has been used to attain the same is having implied terms in employment contractual agreements. Reference List A. Article/ Books/ Reports Books Carsley, F. L. and Shacter, M. R. Good faith and fair dealing in the commercial context in Campbell, Denis and Susan Cotter, Comparative law yearbook of international business. (Kluwer Law International, 1997). Papers Agotnes, T., van der Hoek, W., Tennenholtz, M. & Wooldridge, M. (2009). Power in normative systems. Proceedings of 8th International Conference on Autonomous Agents and Multiagent Systems (AAMAS 2009), Decker, Sichman, Sierra and Castelfranchi (eds.), May, 10–15, 2009, Budapest, Hungary, pp. 145-152. Hazard Jr., G. C. and Angelo, D. (2006). Responsibilities of Judges and Advocates in Civil and Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits. Faculty Scholarship Series. Paper 2329. Papadopoulos, I. (2004). Introduction to comparative legal cultures: the civil law and the common law on evidence and judgment (oral presentation of the book by Antoine Garapon & Ioannis Papadopoulos, Juger en Amerique et en France : Culture judiciaire française et common law. Cornell Law Faculty Working Papers. Paper 15. Scott, J. (2008). Codified Canons and the Common Law of Interpretation. Student Prize Papers. Paper 32. Retrieved on 8 December, 2012 from: http://digitalcommons.law.yale.edu/ylsspps_papers/32. B. Cases Marvel Characters, Inc v Gary Charles (2011) (ATMO 92) 92. University of Western Australia v Gray (2009) (FCAFC 116) 20. C. Legislations Government of Australia Copyright Act 1998 (Cth). Government of Australia Design Act 2003 (Cth). D. Others Web Documents CIA. The World Fact Book: Australia (20 November, 2012) https://www.cia.gov/library/publications/the-world-factbook/geos/as.html. The World Bank, Key features of common law or civil law system (2011) http://ppp.worldbank.org/public-private-partnership/legislation- regulation/framework-assessment/legal-systems/common-vs-civil-law#Common_Law_System Read More