Commercial Law - Abe Transport Pty - Case Study Example

Business Commercial Law Name Institution Question 1 Court Experience As observed in the Melbourne Magistrates’ Court during a tour of the court to observe and study court proceedings and the set up, I was perplexed by the sublime sense of lighting, which permeates the court building and the architectural developments, which exhibited the French Romanesque style. The amazing observation about the court is the inclusion of three courtrooms within the same premises, contrary to my expectations. The three courtrooms were Central inner Courtyard, Stair hall and the Spectacular Octagonal entry. At the time of my entry, there was an ongoing court hearing, which sent mixed emotions pertaining to how the justice system operates and how it affects the victim and the accused. The proceedings triggered several questions on how legal systems operate especially when handling recurring acts of domestic violence. From my observation, I felt the need for significant improvements to the appellate process project to expedite any appeal processes for the hearing and determination of matters involving parental rights as well as to enhance the attorney’s involvement in the corresponding appeals. Hearing Room In the hearing room, I observed several features including a raised desk known as the bench where the judges sat with plain black robes. There was also a witness stand, just adjacent to the bench and another desk occupied by the reporter and the clerk of the hearing room. The room is divided into two parts by a barrier referred to as the bar where the bailiff is sitting on one side to maintain law and order in the hearing room. On the other side of the bench is a table for the plaintiff, the defendant, and their corresponding counsel. There is also a group of seats referred to as the jury box occupied by the jury. There is an open space between the counsel table and the bench, which separates the reporter, clerk, and the jury box. This space is known as the well. I learned that it is disrespectful to the court if any person who is not an employee of the court to directly or indirectly traverse the well. The other side of the bar has been opened for the general public. Personnel in the Hearing Room In the hearing room, there are lawyers representing the interests of distinct interested parties, who sit at the bar table. There are also court officers who administer an affirmation or an oath to the witnesses. A court monitor types some parts of what is being said while the rest is electronically recorded. In addition, there are witnesses allowed to occupy the witness box in readiness to testify before the court. On the other hand, members of the public occupy the public gallery and are not allowed to interrupt or talk to the court. The media is also present and is allowed the freedom to gather any information that may be of interest to them regarding the court proceedings and the ruling. Cases heard by the Civil List The types of cases heard by the civil list include general civil jurisdiction which covers matters that revolve around debt claims, damages (both liquidated and unliquidated) for cases involving breach of contract, any damage of property and civil action for any discrimination under the Occupational Health and Safety Act of 2004. The court also hears cases involving work cover jurisdiction issues, which entails workplace injuries as per the Accident Compensation Act of 1985 or the workers compensation act of 1958. The Magistrates court can also hear and determine cases over property or money whose value does not exceed $100,000 even though it may hear cases of unlimited value in some specific circumstances. Under the industrial jurisdiction, the court may hear claims between employees and employers or deal with matters contained in the Long Service Leave Act of 1992. Commencing and Defending an Action in the Court The first step in commencing an action involves filing a complaint with the court, which is forthwith followed by issuance of summons. Subsequently, documents that support the court claim should be prepared and delivered to the court (both the original and a copy). This may be done by posting them via fax, sending them via the internet, or handing them over to the registry. The registry staff will then check the documents to verify whether they comply with the legislation under which the application has been commenced. The documents will then be stamped after which a filing fee will be paid. A defendant may defend an action in court by filing a defense notice with an attached defense statement along with two similar copies (both originals). The defendants will also explain the reason as to why they think they should file for a defense where the case will either be dismissed or referred to another court. It is inadvisable for the defendant to defend a court action based on the principle alone. Other things that should be involved are the likelihood of success, evidence needed to substantiate the case and whether the party being claimed from will be in a position pay up when they lose (Gillies, 2004). Facts on the Ongoing Case I appeared in court to observe a case that involved domestic violence where the accused was under house confinement for the assaults of his resonance on the victim’s direction. The case took place in the Central inner Courtyard courtroom and involved the crown of attorney, the victim, the judge and the accused as well as his lawyer. The victim was a young individual who had many recurring violence patterns and persistently disobeying his probation orders. This was after the victim had called the police to notify them that the victim (who happened to be drinking in a hotel) had breached his conditional sentence. Laws Governing the Case The laws governing this case are that anybody ought to apply for domestic violence order if confronted with any (Humphreys & Stanley 2006). This is outlined in the Domestic and Family Violence Protection Act 2012. The act exists as provision of safety for individuals in relevant relationships, who happen to be victims of either family or domestic violence. The act has defined relevant relationships as family relationships, spousal relationships or informal care relationships. The Domestic and Family Violence Protection Act 2012 have replaced the Domestic and Family Violence Protection Act 1989 by providing a contemporary definition of what might constitute of domestic violence (Summers 2002). The law was applied in the proceedings of the domestic violence case by establishing the existence of an informal care relationship that subsists between the victim and the claimant. Application and Outcome The court found that article 2 (right to life) was violated as the accused was now becoming a threat to the victim whose prayer to the court was to have the accused finished his conditional sentence while in custody. Moreover, in alteration of the probation order, in order to reduce the victim’s fear, the victim may be arrested by the police and taken into community jail. The Victim eventually won the case notwithstanding the persistent efforts by the defense lawyer to fight the crown on any attempts to rule in favor of the victim. He lost the case because the victim has right to life (article 2) which nobody should violate or threaten by any means necessary. I felt that this was a fair decision as it complied with the Domestic and Family Violence Protection Act 2012. Question 2 Case Issue In this case, Rob is involved in a contractual relationship with Abe Transport Pty Ltd where he works as a driver. This implies a master/ servant relationship between the two parties (Best & Barnes, 2007). In addition, Rob’s brother works with the same company under the field of transport operations and the nature of their employment contracts require them to work together. However, it happened that Rob was reversing the track up the loading bay when he accidentally backed over his brother. Rule The case facts as presented in this question are embedded on the concept of vicarious liability. Vicarious liability is defined as the liability of one person to be held liable on behalf of the other. The proponents of vicarious liability outline that an employer is liable for all torts conducted by his workers in circumstances where there exists a master/servant relationship between the two parties and where the tort committed has occurred in the course of the employment contract (Cane 1997). However, an employer will not be liable for torts committed by his employees if they are beyond the scope of their corresponding employment contracts unless the employer authorizes such acts expressly or decides to ratify them. Moreover, an employer cannot claim that he appointed a competent person in cases where the legal duty is incumbent on the “master” to partake a specific task efficiently and the person (contractor) performs the task imperfectly. The employer is not held liable for the torts performed by his employees only when the liability involves strict liability (Best & Barnes, 2007). This is the only exception and it was well articulated in the case of Ryland’s v Fletcher (1866) . Application and Conclusion Abe Transport Pty will be held vicariously liable for the torts of his employees so long as they occurred in the course of the employment contract. Rob was doing what he was entitled to do and his activities were within the employment scope and contract as he was reversing his truck up the loading bay when he accidentally backed over his brother. Moreover, a master / servant relationship exists between Robb and Abe Transport Pty because he is employed under a contract of service and acts as per the orders of his employer. Abe Transport Pty should therefore be held liable for Rob’s torts because he satisfies the implied conditions of being an employee of the company and backed over his brother in the course of his employment contract. However, Abe Transport Pty would not have been liable if Robb was an independent contractor. In case law, cases which have had a similar ruling are, Lister v Ramford Ice and Cold Storage Co. Ltd (1967) and Storey v Ashton (1859). References Best, A., & Barnes, D. W. (2007). Basic tort law: Cases, statutes, and problems. Austin: Wolters Kluwer Law & Business. Cane, P. (1997). The anatomy of tort law. Oxford: Hart Publ. Damiano D L (2014). Licensed To kill: A defense of Vicarious Liability under the Endangered Species Act, 63, retrieved from http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3423&context=dlj Gillies, P. (2004), Business law, Sydney: Federation Press Humphreys, C., & Stanley, N. (2006), Domestic violence and child protection: Directions for good practice. London: Jessica Kingsley Publishers. Summers, R. W. (2002), Domestic violence: A global view. Westport, Conn. [u.a.: Greenwood Press. Read More