Assessment task: The Australian Legal System, the Law of Negligence and the Law of Contract.
LENGTH: 4 topics each question of the topic should be 1400 Words or how many words it takes for you to feel comfortable answering the question but no less than 1400 words (excluding attachments)
Overview of Assignment
There are 4 topics each with 4 or 5 questions which need to be answered. The 4 questions relate to the following topics,
Topic 1: The Australian Legal System
Topic 2: The Law of Negligence
Topic 3: The Law of Contract, Part 1
Topic 3: The Law of Contract, Part 2
It is important to explain each answer by the use of all relevant authorities in the text of your answer and referred to in the attachments.
You must be aware that the law is based on the doctrine of precedent and you must cite all relevant case law and statutory law and any relevant scholarly writing.
The attachments will consist of law case reports, legislation, journal articles and textbooks extract.
MUST USE THIS BOOK!!!
· Concise Australian commercial law 6th edition ClIVE TURNER, JOHN TRONE and ROGER GAMBLE
Can also use these books:
· Australian Commercial law 33rd Edition CLIVE TURNER AND JOHN TRONE.
· Vermeesch and Lindgren’s Business Law of Australia, 12th Edition
· Law of Contract 10th Australian Edition N Seddon, R Bigwood, M Ellinghaus, M. Ellinghaus
· Principles of Australian Equity and Trusts: Cases and Materials Cameron Stewart and Peter Radan
· Australian Business Law edition 7. Compliance and Practice Roger Vickery, MaryAnne Flood
The above are the main books to be used for this report, you can also add other law case reports, legislation, journal articles and textbooks extract.
Include 10 attachments per Question, total of 40 for all 4 questions.
Attachments should be titled as the following.
Title: Why Magna Carter Still Matters
Judicial Conference of Australia Colloquim, Adelaide
Date: 9 October 2015
Author: Steven Rares
Only use Harvard style referencing! Cite everything, include page number and vol number also make sure all references have a link included with them on the reference list.
Include a content list. Make sure all links are accessible and don’t require me to buy it or sign up to a website to access it.
The following information is details for the tops and the questions to make it easier for you to answer the question.
Structure of law reports
1. Reports of legal cases typically have the following parts which provide information for the reader:
2. The name of the parties; usually the plaintiff’s will be the first although this may be reversed in an appeal case.
3. The name of the Court, judge/s and the date/s of the hearing and judgment.
4. Catchwords – brief headings stating the legal questions involved.
5. A “headnote” summarizing the facts and setting out the legal principles determined in the judgment. Often this will include the cases which were relied upon in making the decision, that is, cases followed, applied, distinguished or overruled by the Court. This can be useful in research for deciding whether the case is relevant enough to be read in detail.
6. A list of cases cited in argument in addition to those cited in the judgment/s and referred to in the headnote.
7. A statement of the remedies sought in the action.
8. The names of the counsel (barristers), and sometimes a summary of their arguments.
9. The judgment/s themselves.
10. The order of the court sometimes included in the judgments.
11. The names of the respective solicitors for the parties.
12. Describe key principles of the Australian legal system.
13. Apply basic concepts of law to practical examples representing the property, project management and construction management fields.
14. Explain how the Australian legal system interacts with the construction and property sectors.
15. Analyse the role of the Australian legal system in the construction and property sectors.
16. Analyse the law of negligence.
17. Analyse the law of contract.
18. Accurate discussion
19. Accurate and detailed explanation
20. Presentation guidelines followed.
21. Appropriate use of primary sources.
Topic 1: The Australian Legal System
One of the main pillars of the common law is fairness, transparency and predictability. One of the ways that this is achieved is by use of the doctrine of precedent.. Precedent is defined at page 34 (Roman numerals) of the prescribed textbook.” Concise Australian Commercial Law” by Turner, Trone, and Gamble sixth edition as” precedent refers to the process whereby judges followed previous decided cases where the facts are similar.” Precedent is the foundation principle of common law legal systems.
The principles of the common law are to be found in the decisions of the various courts. Justice requires that similar cases should be decided in a similar way (stare decisis) or, to put it another way, that the legal principles applied in similar situations should be consistent. The common law gives effect to this notion by what is called the doctrine of precedent. In simple terms, the doctrine requires that the decision of a court in a decided case binds judges lower in the same court hierarchy in deciding cases of a similar nature (ie where the material facts are similar). For example, a decision of the High Court of Australia on a particular issue is binding on State Supreme Courts and the Federal Court, should they have to decide the same issue in a later case. The rationale for the doctrine was explained in the High Court in this way:
If an intermediate appellate court were free to disregard a fundamental doctrine settled by the final appellate court, an endemic uncertainty would infect the administration of justice … Courts are bound to apply the principles laid down by courts higher in the appellate hierarchy and observance of that rule avoids the futility of delivering judgments which will be reversed on appeal: Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (Links to an external site.) (1988) 165 CLR 107.
Decisions in one jurisdiction (eg Victoria) are not binding on the courts in another jurisdiction whether that jurisdiction is an Australian state or territory (eg NSW) or a foreign jurisdiction (eg UK). Such decisions are of persuasive value only, although in some instances, depending on the status of the court, it may be have significant persuasive authority decisions of courts at the same level in the same hierarchy are persuasive precedents only. In practice, however, such decisions will be followed unless the judge in the subsequent case is convinced the decision was wrong.
1. Discuss and define ratio decidendi. Please explain by the use of all relevant authority in the text of your answer and refer some of your authority as attachments.
2. Discuss and define obiter dicta. Please explain by the use of all relevant authority in the text of your answer and refer some of your authority as attachments.
3. Discuss and define the difference between binding persuasive authority. Please explain by the use of all relevant authority in the text of your answer and refer some of your authority as attachments.
4. What is equity law? Why did it emerge? What is the difference between the common law and the law of equity. Please explain by the use of all relevant authority in the text of your answer and refer some of your authority as attachments.
Topic 2: The Law of Negligence
The Law of negligence is a significant liability and an obligation to business. If a business person in the performance of whatever the activity involved is does not perform as a reasonable person would and someone is harmed by that failure to reach the standard that a reasonable person would then there is a compensation system through the law of negligence. The possibility of being held liable in negligence is a considerable business cost because of the need to take out the appropriate insurance.
At page 324 of the prescribed textbook the authors state that negligence “has had a profound impact on the society at large and business in particular.
And on page 325 “Successful claims have been brought in a wide variety of circumstances including traffic accidents, actions against retailers and manufacturers for loss or injury incurred as a result of the supply of defective products against those who fail to exercise reasonable care in carrying on a profession such as doctors, solicitors, accountants and financial advisors.”
And on page 324 ” If the law of torts is, historically, a creature of the common law courts, it is the legislature that is now play an important role in clarifying and reforming the law. For that reason, we have to consider both the common law and the legislation.
1. What is the primary object of the tort? Please explain by the use of all relevant authority in the text of your answer and refer some of your authority as attachments.
2. What are the 4 main elements of a negligence action? Please explain by the use of all relevant authority in the text of your answer and refer some of your authority as attachments.
3.Discuss the legislative and the common law principles that the court will use to determine the standard of care that a reasonable person must reach to fulfil their duty of care . Please explain by the use of all relevant authority in the text of your answer and refer some of your authority as attachments.
Topic 3: The Law of Contract, Part 1
At page 53 of the prescribed textbook the authors state
“Contracts are the beating heart of commercial life in Australia. Much of the law governing the supply of goods, services or property, employment, agency, insurance, banking and finance, partnerships and so on concerns the application of general contractual principles to specialised areas of commercial law.
Although the general principles of contract law may apply to a wide range of commercial transactions, each contract will reflect the particular circumstances. Obviously some contracts are more complex than others (eg a long-term resources contract with China requires a contract that is radically different in form and substance to a contract for the purchase of a car); some contracts are made and performed in an instant (eg buying a croissant) whereas others are longer term or relational contracts (eg Australia’s LNG contract with China is a 50-year contract); some are for domestic purposes (eg buying a television) whereas others are multi-party, commercial arrangements (eg multi-billion dollar construction contracts to extend a Metro or build a City Link freeways); some involve international trade (eg contracts to purchase submarines from France); many contracts are regulated by statutes (eg residential tenancy agreements or consumer contracts); some have no requirements as to the form in which they must be expressed (they may be oral or written or a blend of both) whereas others have strict requirements as to the form of the contract (eg a residential lease must be in writing).
The principles that make up the law of contract derive from the English common law courts. Even today, many of the early English cases are still cited as authority for one principle or another. Of course, we now have a substantial body of Australian case law and, in addition, over the past 50 years or so, both State and Federal parliaments have passed legislation that affects a wide spectrum of commercial agreements and (often) imposes higher standards of commercial behaviour than the common law did.
1. Discuss the essential elements that constitute a contract and Include in your discussion some of the contracts which statutory law prescribes they be in a certain form and even the exchange of documents before the contracts are enforceable. Please explain by the use of all relevant authority in the text of your answer and refer some of your authority as attachments.
2. Discuss how the law of equity in the development of the doctrine of promissory estoppel has changed the need for a contract in equity to have consideration and overcome the need to meet the prescribed statutory formalities. Please explain by the use of all relevant authority in the text of your answer and refer some of your authority as attachments.
3. Discuss how the law of equity has overcome the need for some contracts to be in writing. Please explain by the use of all relevant authority in the text of your answer and refer some of your authority as attachments.
4. Discuss the law which is applicable when an offer will be considered a counter offer and the legal effects of a counter offer. ( 1 mark) Please explain by the use of all relevant authority in the text of your answer and refer some of your authority as attachments.
Topic 3: The Law of Contract, Part 2
Parties need to enter into contracts honestly and not employ sharp business practices that give rise to defences which will allow a party remedies if the elements of those defences are made out. If the contract is enforceable but not performed there are remedies available to the innocent party. The law also sets out what constitutes the elements of the contract, how the contract will be interpreted and what will constitute performance of the contract.
1. ” The common thread in duress, undue influence and unconscionable conduct actions is the imbalance of power and position between the plaintiff and defendant” see page 145 of the prescribed textbook. Please explain by the use of all relevant authority in the text of your answer and refer some of your authority as attachments.
2. Discuss the legal principles the court will use to determine if the parties have incorporated an undertaking in the contract. Please explain by the use of all relevant authority in the text of your answer and refer some of your authority as attachments.
3. Discuss the principles the court will use to interpret any terms in the contract that are ambiguous or uncertain. Please explain by the use of all relevant authority in the text of your answer and refer some of your authority as attachments.
4. Discuss the remedies available for breach of warranty, breach of condition or repudiation of the contract. Please explain by the use of all relevant authority in the text of your answer and refer some of your authority as attachments.
5. Presentation is very important when answering these questions.
Presentation consists of the use of secondary and primary sources that you have used in the text of your answer and you attach the head note of a case used as authority for points you make in your text, a full copy of the statutory section for the statutory section you refer to in your text and the first page of any journal article you referred to in your text. You may go further and extract part of the case judgement and extract part of the journal article.