QUESTION
BULAW5914
Commercial Law
Semester 1, 2012
Purpose
This is a significant task that requires forward planning and adequate time for research, reading and reflecting. You should begin researching early to gather information and establish a plan as soon as possible.
The purposes of the assignment are to enable you to:
- develop your independent research skills;
- enhance your understanding of law as a dynamic process;
- learn how to independently research a particular aspect of the law;
- reflect on and consider particular legal issues;
- demonstrate understanding of the legal environment, including relevant laws as well as economic, ethical, social/cultural, international and political issues;
- develop your knowledge about the subject area of your research;
- demonstrate the ability to investigate, synthesise and analyse;
- communicate the findings in a formal price of work and meet a deadline;
- enhance your analytical and written communication skills; and
- Apply your legal skills.
Your work must comply with the format outlined in the University’s General Guide to the Presentation of Academic Work publication, available online at: http://www.ballarat.edu.au/generalguide.
Assignments must be accompanied by a signed official cover sheet (‘Plagiarism Declaration Form’), available online at http://www.ballarat.edu.au/business/resources/student-forms/assign-coversheet.doc
On the cover sheet, please state your name, student numbers the paper name and assignment number also the reference system you choose to use, the word count for your assignment, and a signed honesty statement identifying that you are aware of the University of Ballarat’s policies on plagiarism, and that this submission is entirely your own work free of plagiarism and collaboration.
The length of the assignment must not be more than 2,200 words. Do not include the references or bibliography in the word count. This assignment is worth of 35 marks. Due date for submission is 14 May 2012. Penalties will apply for late submission.
Task:
The assignment has two parts. Part A requires you to write an essay and Part B requires you to solve a problem scenario. Therefore, you should use essay format for Part A and IRAC format for Part B.
If you have any questions, please ask your lecturer or tutor.
Part A:
Write an essay comparing Australian Legal System with the legal system of your country of origin. (If you are a local student, choose any country’s legal system and compare it with the Australian Legal System). (10 marks)
Hints: You should write this essay in the context of information and knowledge you have gained from Topic 1 and then make a comparison with the legal system you have in your country of origin. You should endeavour to find some similarities and dissimilarities, if any. For example, your country of origin’s legal system may be also based on English Legal System like the Australian legal system, or you may have the same extent of separation of power in your country’s constitution. On the other hand, you may have a unitary system of government as opposed to Australia’s federal system of government and consequently there is no issue of power sharing between the State and Federal government.
Part B:
Kathy, based in Brisbane, is a renowned public speaker in the area of Human Rights. She is invited as a key note speaker at a two-day conference at the University of Ballarat’s Mt Helen campus on “Interplay between Human Rights and Economic Development”. Organisers of the conference promised Kathy accommodation and return tickets from Brisbane to Melbourne. Kathy is responsible for her travel to and from Melbourne Airport which is 121 kilo meters away from Mt Helen, Ballarat. It takes about 1 hour and 15 minutes by car but longer by other public transport.
Kathy’s key note paper “Generation Y and Intergenerational Rights” deeply moved the participants and especially Mark and Laura, students of Commercial Law at the University of Ballarat. Mark and Laura joined Kathy during the conference lunch and shared their views. They also offered Kathy a lift to Melbourne Airport on her day of return. Relying on Mark and Laura, Kathy made no other travel arrangements. Subsequently, neither Mark, nor Laura turned up to take Kathy to Airport. Kathy later took an airport shuttle bus from Ballarat to Melbourne Airport but ultimately missed her flight. Kathy had to buy a new ticket to travel back to Brisbane at considerable expense. Mark and Laura had to submit an assignment for Commercial Law on the day of Kathy’s departure and therefore could not keep their promise. Kathy is really upset even though Mark and Laura later sent an email with an apology.
Required: Kathy now seeks compensation from Mark and Laura for the loss she suffered due to non performance of their promise. Advise Kathy and refer to relevant case law and/or legislation if any, in support of your advice. (25 marks)
Hints: Follow the Issues-Rules(Laws)-Application-Conclusion (IR/LAC) model for your answer.
Assignment Assessment Criteria
You will be assessed on the extent to which you have:
- answered the task questions;
- used good English expression, correct spelling, good punctuation and grammar and have proof read your work;
- Used a logical structure, with headings. (It is important that you develop the capacity to communicate professional advice clearly. In order to do this you need to carefully structure your answer in such a way that anyone reading your work is made aware of what is going to be talked about, and is led in a logical way through the arguments to a conclusion);
- been able to identify, set out and discuss relevant legal issues, legal principles and cases, as appropriate;
- Used statutes and cases to support your arguments, as appropriate. You must rely on cases to explain/support/justify the arguments you are making but these cases can be obtained from textbooks. You are encouraged to use cases which have been discussed in the classes and which can be found in textbooks. The selection of cases, however, is up to you. What is important is how the cases you have selected support your arguments;
- analysed, argued or discussed as required by the task questions; and
- Found, read and used other textbooks.
In order for you to gain a high distinction (HD), you need to have in relation to the task:
q provided a concise and accurate overview of the requirements for insurers
q that showed you had a very good understanding of this area of law in general
q provided very good arguments for all relevant parties
q discussed the above:
- clearly;
- using a logical structure;
- critically; and
- giving your own view
q made very good use of at least 3 relevant cases and appropriate legislative provisions to support your discussion/arguments
q shown good evidence of research and use of it – at least 6 resources, which should include 3 texts, 3 relevant cases and appropriate legislation
q shown excellent presentation: e.g. writing (used good English expression, correct spelling, good punctuation and grammar), proof reading and referencing of direct and indirect quotes – correct and accurate as to style
q kept within the word limit
Generally
q shown adequate presentation: e.g. writing (used adequate English expression, spelling, punctuation and grammar), proof reading and referencing of direct and indirect quotes – reasonably correct and accurate as to style
q been not too far over or below the word limit
In order for you to gain a distinction (D), you need to have:
q done nearly all of the above but not as well
In order for you to gain a credit (C), you need to have in relation to the task:
q provided an overview of this area of law in general
q provided reasonable arguments for most relevant parties
q discussed the above adequately
q made reasonable use of at least 2 relevant cases and appropriate legislative provisions to support your discussion/arguments
q shown reasonable evidence of research and use of it – (e.g. between 4 and 6 resources used)
q provided an adequate explanation in relation to the chosen structure
generally
q shown adequate presentation: e.g. writing (used adequate English expression, spelling, punctuation and grammar), proof reading and referencing of direct and indirect quotes – reasonably correct and accurate as to style
q been not too far over or below the word limit
In order for you to gain a pass (P), you need to have in relation to the task:
q provided an overview of requirements for insurers that showed you had a basic understanding of this area of law in general
q provided basic arguments for some parties
q discussed the above to a limited degree – more analysis needed
q made an attempt at using at least 2 relevant cases and appropriate legislative provisions to support your discussion/arguments
q shown just enough evidence of research, better use of it possible – (e.g. only 3 resources used)
q provided a basic explanation in relation to the chosen doctrine
generally
q shown basic presentation, could be improved: e.g. writing (used basic English expression, spelling, punctuation and grammar), proof reading and referencing of direct and indirect quotes – not consistent in style but no plagiarism apparent
q been not too far over or below the word limit
If you received a fail (F), in essence, your paper showed little attempt was made at the task, was very confused, and lacked care.
In relation to the task you have:
q shown no or little understanding of the topic and/or no serious attempt to address the topic components
q mentioned legal principles but without understanding
q been totally descriptive: copying of slabs of material from texts and/or other resources
q given no references (can also be referred to Head of School for disciplinary action)
Generally
q shown very poor writing – i.e. not understandable
q been well under the stated word length
Your individual feedback according to the criteria:
- Understanding shown of insurance law in particular the statutory and common law requirements of insurers
| Very good | Good | Adequate | Attempted | Needed improvement |
- Analysis of the arguments which could be made by the relevant parties
| Very good | Good | Adequate | Attempted | Needed improvement |
- Gave your own view
| Done well | Adequate | Attempted | Needed improvement |
- Use of appropriate case law and legislative provisions
| Done well | Adequate | Attempted | Needed improvement |
- Logical structure
| Done well | Adequate | Attempted | Needed improvement |
- English expression, proof reading, correct spelling, punctuation and grammar
| Done well | Adequate | Attempted | Needed improvement |
- Range of resources (at least 6, at least 3 of which should be texts)
| Done well | Adequate | Attempted | Needed improvement |
- Resources used well
| Yes | Needed improvement | No |
- Presentation requirements met:
Title page Yes No Needed improvement
A4 paper, double spaced, 12-point font Yes No Needed improvement
- Referencing:
Style identified Yes No Needed improvement
Direct quotes and paraphrasing referenced Yes No Needed improvement
Recognised style used consistently in body of assignment Yes No Needed improvement
List of references – recognised style Yes No Needed improvement
Bibliography – recognised style Yes No Needed improvement
Any general comments
SOLUTION
- Australian and United States Legal System: A comparative analysis
First we have to know what is called a legal system. A legal system of any country is a wide term which describes about the laws applicable in that country. These laws may be codified and un-codified. Every country has a unique and particular legal system to govern its people effectively which more or less have similarity with other legal system. Here in this essay, I have chosen the legal system of United States to compare it with the legal system of Australia and find their similarities and dissimilarities. But first we should know a little about these legal systems in brief.
Short description of Australian Legal System
Australian legal system developed from British legal system which was brought by British while setting up the colonies. At that time Australia was been governed by the legal system of British colonies. Later on they gave little right to establish a separate legal system in Australia during 1890’s. In 1990, with the enactment of constitution in Australia, in five rounds of conventions the Australian Legal System started as a separate legal system. The full name of Australian constitution is ‘Commonwealth of Australia Constitution Act, 1900. The Common wealth of Australia was formed by the group of colonies, which then formed the states. The fundamental principle on which Australian legal system is based is the ‘Rule of Law’ and independence of Judiciary. The main objective of Australian legal system is to treat everyone equally with law whether an Australian or non Australian.[1] Australia is also a very good example of separation of powers, where powers are divided between states and centre. Here every state and territory has its own self government and judicial system also their own courts and parliament. Primarily Laws are made in parliament and by Judges in the courts local bodies such as local council and public servants also makes and implement laws. [2] In a nutshell there are three statutory bodies which are involved in the legal system of Australia, Commonwealth Government, State or territorial Government and Local Government. All of these passes laws and are elected by the citizens of Australia who are the residents of that state and able to vote.[3]
Short Description of US Legal System
On the other hand United States Legal System is primarily based on the principle of separation of powers. We can find many similarities between these two legal systems. The states in US are not given the supreme power but the essence lies in the central government. Powers are separated in the form of executive, legislature and Judiciary.[4] Source of Law in US are the Constitution, Statutes and Ordinances, Common Law, Administrative Law. Constitution vests its power to make laws to legislations on congress. A proposal made by the congress is known as bill. A bill when passed by both Houses of parliament with majority votes results into a statute. In America, Constitution has been given supreme importance and like other nations judiciary is not independent but possesses only those powers which are delegated by the constitution. It was stated in the case Marbury v Madison 5 U.S. (1 Cranch) 137 (1803) that any law to be invalid must be proved unconstitutional first or it violates any provision of the constitution.
Comparison between the two Legal Systems
Looking at first instance we will find that both the systems are much similarity, like separation of powers and House of Representatives and senate. But there is a need of closure look to compare and find differences in the two Legal systems. Australian legal and judicial system is much derived from the system in England which is based on the Constitution whereas, US also has a constitution but is purely a republic country. The constitution of Australia is enacted by the five conventions and came into force in 1900 under the British (Imperial) Act of 1900. On other Hand US Constitution has been written by 55 delegates of each state in one convention and came into force during the time of George Washington on 30th April 1789.[5] The reason why a constitution needs to be discussed while studying the legal system of any country is the fact that a constitution sets the system of governance of any country. Hence its history is very important.
After constitution, there comes the head of the nation to whom all the powers are vested.
Australian constitution vests the executive powers in Queen but the power of Queen is exercised by the Governor General. Queen is the head of the nation whereas Governor General is the representative of the Queen and he is appointed by the queen on the advice of the Prime Minister and Ministers are selected by the parties. Whereas in US, the power is vested in President, he is the head of the nation and the president selects his cabinet of Ministers who suggest him in his work. Presidents in America are elected by the people in every four years. In Australia the amendment process of the constitution includes the absolute majority vote on the subject. In US, for amending the constitution, there must be a two third majority of house of congress and two third majority of the state legislature must support the amendment.[6] Elections in Australia for Australian parliament are held in every three years or earlier if it is needed by the Prime Minister. Whereas in US the term is fixed for two years, after every two years in November there must be the elections for American congress. Both the nations adopted the bicameral system where the powers are divided in upper and lower house and senate. Senators are elected for the term of six years in both systems. Executive government in Australia consists of prime Minister and its Minister who are also elected members of parliament. In US the executive Government is constituted by the president who has secretaries of cabinet to his assistance.
If we talk about the criminal justice system of these two countries, both relies firstly on the innocence of the accused and main purpose is to promote justice. Albeit both have different approach but the objective is same. After observation we find that US jurisprudence is right oriented whereas Australian justice system is office centered.[7]
Conclusion
Despite of having little dissimilarity, Australian legal system is very similar to that of United States. The History of both, once being colonies of England can not be denied as the reason behind much similarity between the two legal systems. It will not be wrong to say that Australian Legal system is the combination of English and US legal systems and all are based on the principles of fairness, transparency and guarantees its citizens equality before law, freedom from biasness and some fundamental rights like right to life and personal liberty and right to be heard before any court of Law.
- b. Issues involved in this case are presumed to be related to the non performance of a promise. Here, Kathy is claiming compensation from Mark and Laura, the defaulters, for not performing their promise. According to her they had offered to drop her to the Melbourne Airport and relying on their promise she didn’t make any arrangements for transportation by her own. Later on both Mark and Laura allegedly missed to inform her about their engagements and did not arrive to take her. This made her late for the flight and she missed it. As a result she had to book another ticket for her departure which costs her more than the previous ticket causing a financial loss to her. Points raised by Kathy were, that there was a breach of duty to perform the promise and claiming the compensation from them. It is always difficult to advice in such situation where the promises between the parties are not exchanged with an intention to create legal relationship which is necessary for any agreement to be legally enforced. (Balfour v Balfour, [1919] 2 KB 571)
So, it is better to see the issue in the terms verbal contract law. It is clear from the above facts that there was not a written contract between the Mark, Laura and Kathy. There was only a promise to do something and a contract is a series of such promises. The terms of a contract determines the rights and obligations of the parties to it. This term of contract may be expressly made or impliedly. (Empirnall Holdings v Machon, (1988) 14 NSWLR 523) The express terms of a contract are those which are articulated at the time of entering into contract or before it. It will be clearer if it is in written form but there is difficulty in distinction of oral and written terms here. Implied terms are the terms which the law implies to be and not clearly stated by the parties.[8] There are also the terms which are implied by law. The test of which is the testy of necessity. (Liverpool city council v Irwin, [1977] AC 239) Where it has been stated that there are some necessary subjects in contract, if this is not performed the law will presume breach of the contract. For the constitution of every contract whether it be a verbal contract, offer and its acceptance is essential.[9]
There is also the scope of applicability of unilateral contract in this case. Unlike the Bilateral contract, unilateral contracts are such where only one party makes promise. In unilateral contract the communication of acceptance is waived by law. Generally courts in Australia favours bilateral contracts but through approving unilateral contracts, law attempts to provide protection to the offeree from the general risk of revocation by the offeror. It is important here that the unilateral contract will exist in the situation where, the offer needs the performance and not the promise.[10]
Mark and Laura offer to Kathy for a lift to Melbourne Airport and the same as other verbal contracts, accepted by Kathy. There was the valid condition to constitute a contract although it is a verbal one. Like other offer and acceptance in many cases (Harvey v Facey, [1893] AC 552) this offer and acceptance also constitutes a contractual agreement. But at the same time it is also important for both the parties to have intention to enter into the contract. For a verbal contract, generally people give other something of value as consideration or money but in some situation it is only the exchange of promise between parties. Likewise in this case, there was only a verbal promise made by Mark and Laura to Kathy but at the same time Kathy relied upon their promise and did not made her own arrangements for transportation. This fact can not be left unobserved that she suffered loss only because of relying on them. If not she would have managed by her own and will never be late. Mark and Laura should be held responsible for not performing their two duties. First, the contractual duty to perform their part of promise, second the moral duty to inform Kathy about their being busy. The main purpose of Law to provide remedies and damages to the aggrieved person affected by the non performance of agreement is to put that person into the position in which he would have if he had not suffered the loss. Here in this case, Kathy can not be send back to her earlier position where she can catch her flight on time neither an apology letter written by Mark and Laura can cover her financial loss. She is only left with the option of claiming the damages in the form of money compensation.
Hence, Kathy can claim compensation from Mark and Laura for the non performance of promise under the implied verbal contract between them. Also failing in their moral duty to act in good faith and inform the other party about any new development related to the promise, as they failed to inform that they are not coming to pick her for the Airport. As Kathy is an imminent public speaker she has to travel to different places across Australia, this incidence caused Kathy to suffer financially and mentally. Kathy can move to any small cause’s court and claim the compensation.
BIBLIOGRAPHY
- Australian government: Ministry of foreign Affairs and trade, ‘Legal System’, [2012], viewed on 11th May 2012 from http://www.dfat.gov.au/facts/legal_system.html
- Fitzroy Legal Service, ‘Australian Legal System’, The Law Hand book, [2012], viewed from http://www.lawhandbook.org.au/fact_sheets/ch01.php
- Robin Banks, [2007], ‘Australian Legal System’, Hot Topics, legal issues in plain language, viewed from http://www.legalanswers.sl.nsw.gov.au/hot_topics/pdf/aust_leg_syst_60.pdf
- Federal Judicial Centre,[2008], ‘The US legal System: Short Description’, viewed from http://www.fjc.gov/public/pdf.nsf/lookup/IJR00003.pdf/$file/IJR00003.pdf
- Parliamentary Education Office, [2012],‘Comparison of Australian and US federal Legislatures’, viewed from http://www.peo.gov.au/students/cl/comparison.html
- Paul Marcus, [2010], ‘Australia & United States: Two common criminal justice system with uncommon folds’, Part 2, Scholarly Publications
- Clark Julie, (2012), Formation, Australian Contract Law, viewed on 22nd Feb 2012, http://www.australiancontractlaw.com/law/formation.html
- Online Lawyers Source, Verbal Contract Information,(2012), viewed on 11th May2012 From http://www.onlinelawyersource.com/contract/verbal.html
- Law School.com, ‘Implied terms of Laws’, Contract Law Overview, (2012), viewed on 11th May 2012 from http://www.4lawschool.com/contracts101/contractslaw.html
- 10. Clarke Steven, (2010), Australian Contract Law & Precedents, http://stevenclark.com.au/2010/07/21/australian-contract-law-precedents
[1] Australian government: Ministry of foreign Affairs and trade, ‘Legal System’, Feb 2012.
[2] Fitzroy Legal Service, ‘Australian Legal System’, The Law Hand book, 2012.
[3] Robin Banks, ‘Australian Legal System’, Hot Topics, legal issues in plain language, 2007.
[4] Federal Judicial Centre, ‘The US legal System: Short Description’,
[5] Parliamentary Education Office, Comaprison of Australian and US federal Legislatures, 2012.
[6] Ibid.
[7] Paul Marcus, ‘Australia & United States: Two common criminal justice systems with uncommon folds’, Part 2, Scholarly Publications, 2010.
[8] Julie Clarke, ‘Terms of Contract’, Australian Contract Law, 2011.
[9] Law School.com, ‘Implied terms of Laws’, Contract Law Overview, 2012.
[10] Ibid.
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