Overview Of Australian Law

Delegated Legislation

The parliament frequently enacts legislation which contains provisions empowering the executive government, judiciary, government office holders to make laws and regulations become binding upon the citizens of the country.  Delegated legislation is also called secondary legislation. Legislation is delegated by the Parliament to subordinate bodies of the government to reduce pressure on the parliament and to also save parliamentary time.  It is to be mentioned that legislation is delegated by the parliament in when there is immediate need for a drastic change in the laws or during times of emergency.

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Federalism is the mixed form of government which includes a central f federal government and regional governments in the single and same political structure. It is to be mentioned that due to federalism there has been centralization of power. Due to centralization of power it has become easier for business concerns to be governed and supervised by the government directly. It can be noted that the Common Wealth Government has complete authority over the major policies of business. It can be stated businesses are changing their ownership patterns to include both the private and the public sectors.

The matters that are generally heard by the administrative tribunals are those on social security, commonwealth employee’s compensation, taxation, migration, corporations, freedom of information and entitlement of veterans. It can be said that tribunals not only function in the federal level but also in the states.

A client is best advised to attend the tribunal court if any government decision affecting him is to be challenged. Administrative tribunals review the validity and the feasibility of the government decisions. However if any legal right of any individual is infringed he is best advised the matter to court.

In the case Amalgamated Society of Engineers v Adelaide Steamship Co Ltd, a dispute arose between the Amalgamated society and a saw milling factory, which was owned by the government of Australia. It is to be mentioned that the commonwealth of Australia had intended to legislate for the Union as it stated that it had power to legislate under section 51 of the constitution. The High Court of Australia interpreted the section in a much broader sense. According to its interpretation it was held that Commonwealth Industrial law would be binding upon State agencies of Western Australia and other states

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It is to be mentioned that the primary sources of law of Australia refer to written documents which defines a rule or a regulation in the form of a law. The primary sources of law can be identified as the:

  • Common Law – Common law is based on the judgments given the courts in remarkable cases. It can be said that common law is also at times referred to as case or judge made law. Common law is applicable to all cases and is developing in nature.
  • Statute Law- Statute law is the law made by the parliaments and is one of the important primary sources of law
  • Delegated Legislation- Delegated legislation is also called secondary legislation. Legislation is delegated by the Parliament to subordinate bodies of the government to reduce pressure on the parliament and to also save parliamentary time.

Federalism

The advantages and disadvantages of main business structures that can be legally established are:

Advantages:

  • The sole trader can take decisions on his own
  • Profits are not shared
  • Start Up capital is less
  • Maximum privacy is available

Disadvantages:

  • The sole trader has unlimited liability
  • Capacity to raise capital is limited
  • A sole trader is taxed a single person
  • Life of business is limited

Advantages:

  • Capital is raised jointly by partners
  • It is flexible in its operations
  • Partners share the responsibility
  • Decisions are taken by partners

Disadvantages:

  • Disagreements often occur between the partners
  • Partnerships have unlimited liability
  • Partners must pay tax individually like sole traders
  • Profits are shared equally by partners

Advantages:

  • Limited liability for the shareholders
  • Transfer of ownership is easier
  • Taxation rates are favorable
  • Access to more capital reserves

Disadvantages:

  • Expensive to establish
  • There is a lack of privacy
  • Directors are held personally liable if the company fails to clear its debts
  • Profit distributed by share holders is taxable

Advantages:

  • Trusts have limited liability
  • Trusts have more privacy than a company
  • Trust income is considered to be an individual’s income
  • It has more flexibility than a company

Disadvantages:

  • The structure of trusts is more complicated
  • Trusts are expensive to maintain
  • Faces complexities while taking loans
  • Trustees’ powers are restricted by deeds 

It is to be mentioned that Unilateral Contract is a type of contract where one of the parties to the contract is under the legal obligation to uphold the contract terms. In a Unilateral contract the acting party is not obligated to perform the duty. However, bilateral contracts are most common types of contracts where both the parties to the contract are legally obligated to perform their duties.

Example of Unilateral contract- An offer by a person who agrees to pay one hundred dollars if someone finds his lost dog

Example of Bilateral Contract- A contract between A and B, where A promises sell a plot of land to B for fifty thousand dollars and B accepts the offer of A.

It is to be stated that Meeting of Minds in a contract is a phrase which refers to mutual consent of the parties to the contract. It is to be mentioned that for the formation of the contract a common understanding of the contract terms is essential. In the case, Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256 it was held by the court that meeting of minds is essential for the formation of a contract

Void and voidable contracts are similar terms and often create confusion and misunderstanding in the minds of the people. In case of a void contract, the law will treat the contract like it had never been formed. A contract is generally considered void when the terms of the contract are impossible and illegal to be binding upon the parties. However, in case of a voidable contract, the law considers it to be a valid contract which is lawful and enforceable in nature. In a voidable contract one of the parties is bound by the contract terms but the other party is allowed to cancel the contract. The difference between the two is very less but it is very important to realize to whether a contract is void or voidable to understand its validity.

Mistake in a contract refers to a mistaken belief of either or both the parties to the contract about the terms of the contract. If it can be established that the parties to the contract had entered into the same because of a mistaken belief, the contract will be held as voidable or void ab initio.  However it is to be mentioned that a mere error of judgment in a contract will not make it a void contract.

Administrative Tribunals

It can be said that a contract entered into, by a person in a drunken or intoxicated state is voidable if the party who had entered into the contract in an intoxicated state wishes to exit the contract. However, party willing to withdraw from the contract must prove that he was in an intoxicated state while entering into the contract and the other party had been aware of it.

The parole evidence rule states that no party to a contract would be allowed to present any evidence whose aim is to prove that there was some ambiguity in the terms of the contract in case a written contract. The principle behind this rule is that since the parties to the contract had clearly specified the terms of the contract in writing, no previous agreement between the parties would have any effect on the contract. This rule is used when one of the parties to the contract seeks to alter the contract terms by presenting new evidence of agreements of the past.

Promissory Estoppel is a legal principle which states that a promise made by a promisor to a promisee is enforceable by law if it can be proved that the promisee had relied on the fulfillment of the promise. It is also has to be established by the promisee that he is likely to suffer a detriment if the promise is not fulfilled.  The principle behind Promissory Estoppel is aimed to prevent the promisor from going back on his promise and the injury party to recover damages from the promisor for non fulfillment of a promise. It can be stated that the principle of Promissory Estoppel can be applied in situations when a promise has been made by the promisor and the promisee has acted on the promise.

Law: The issue to be discussed in this case is governed by the principles of Contract Law. It is to be mentioned that contract is an agreement between two parties which is enforceable in nature and is legally binding upon the parties

Relevant Law: Intention to create legal relations – In the case Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd [1989] 2 NSWLR 309 it was held by the court that for a contract to exist there has to be intentions of both the parties to create legal relations between the same. It can be said that for a contract to be formed, the parties entering into such contract must have the capacity to contract.

Different Business Structures

Domestic Agreements: In the case Balfour v Balfour[1919] 2 KB 571 the court stated that domestic or social agreements will be considered to have been formed without the intention to create legal relationships

Commercial Agreements: In the case, Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 it was held that both parties to a contract must intend to create legal relationships n the presence of consideration.

  • Gagan had a contract with Rob, which stated that Rob would be Gagan’s manager for a period of 10 years and would be entitled to 75% of the earnings
  • Gagan wished to eliminate the contract after 4 years
  • The contract formed between Gagan and Rob would be legally binding upon them
  • There was commercial intention to create legal relationships on the part of both parties , on the basis of which the contract was formed.
  • Domestic agreements do not intend to create legal relations therefore no contract was formed between Gagan and Rob, if Rob was his father.

Conclusion

It can be stated that express terms of the contract between Gagan and Rob stated that Rob Would remain Gagan’s manager for 10 years therefore if Gagan wishes to terminate the contract in three years it would be breach of contract terms.  However If Rob was Gagan’s father there would have been no intention to create legal relations in the contract, as a result of which Gagan would be able to terminate the contract. 

The case will be governed by contract law. It is to be mentioned that contract is an agreement between two parties which is enforceable in nature and is legally binding upon the parties. The six elements of valid contract include: offer, acceptance, consideration, mutual obligation of parties, competency to contract and written instrument.

  • Offer and Acceptance: An offer can be made to an individual or to the world at large as held in the case Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256; [1892]. Acceptance is the statement given by the offeree in agreement with the offer as held in the case Crown v Clarke (1927) 40 CLR 227
  • Communication of offer- It is to be mentioned that for an offer to be valid it must be communicated. However, it is to be stated that an offer may be communicated to any single person or to the world at large as held in the case Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256; [1892] .
  • Revocation of offer- An offer can be revoked any time prior to its acceptance by the offeror as held in the case Hyde v Wrench (1840) Beav 334
  • Lapse of offer- It can be stated that an offer can become invalid upon the death of the offeror, lapse of the stipulated time period of the offer, failure to fulfill a certain condition as specified in the offer
  • Counter Offer- In the case Hyde v Wrench (1840) Beav 334 it was held a counter offer does not constitute acceptance
  • Acceptance of the offer- In the case Crown v Clarke (1927) 40 CLR 227 it was held acceptance is only a response to an offer.
  • Communication of Acceptance- In the case Bressan v Squires [1974] 2 NSWLR 460 it was held communication of acceptance is important to make the contract valid. In case the acceptance of offer is communicated by post the postal rule would ap 
  • Stanley posted the offer of selling his business to all the three people
  • Sarah made a counter offer by willing to pay the consideration in installments
  • George posted the letter of acceptance prior to revocation of offer
  • Peter agreed to buy Stanley’s business verbally
  • Stanley posted letters to all except Peter about revocation of offer
  • There was intention o create legal relations on the part Stanley
  • Sarah did not accept the offer but made counter offer. Therefore there is no contract between Sarah and Stanley
  • George posted letter of acceptance prior to revocation, thus constituting valid acceptance according to postal rule
  • Contract was also formed between Peter and Stanley

Conclusion

Stanley has contractual obligations to both Peter and George. The act of revoking the offer will constitute breach of contractual terms as George had already entered into contract with Stanley

Law: Terms, Conditions and warranties of a contract

Relevant Rule: According to section 55 of the Australian consumer Law it can be stated that it is the responsibility of the supplier of the goods to ensure that he satisfies the need of the customer, who buys such goods and services. It can also be stated that the other party to the contract relies on the goods and services provided by the supplier. Warranties and Implied conditions as defined in the sale of goods act state that the goods must meet the needs and the purpose of the customers

In the case McWilliams Wines Pty Ltd v Liaweena (NSW) Pty Ltd (1993) 32 NSWLR 190, the court stated that there was a breach of fitness for the quality and the purpose of the goods. It was held by the court that purpose did not match he requirements of the customer. Therefore the customers are entitled to claim damages.

Relevant Case: Associated Newspapers Ltd v Bancks [1951] HCA 24 – 83 CLR 322

The court held that in this case there had been a breach of contract warranties therefore the defendant was liable to pay damages.

Relevant case: Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2 KB 528

In this case the court held that the plaintiff must prove that the damage caused to him was not too remote and could be foreseen .

  • Marine Designers Pty Ltd agreed to supply 3 yachts to Oceans Tours on 15th june 2012
  • They could not deliver the ships on time due to which the latter company sustained a a huge loss
  • The yachts delivered could not accommodate 20 people as stated earlier by the former company

It is to be noted that a contract existed between the aforementioned parties in which was expressed the date of delivery and the carrying capacity of the yachts. According to the Australian Consumer Law, it can be noted that the goods produced did not meet the requirements of the customer in relation to its purpose and quality. Due to reach of contract terms Oceans Tours faced a substantial loss. 

Conclusion

Thus in conclusion it can be stated that there was a valid contract existing between the aforementioned parties and due to the breach of Contractual terms; Oceans Tours Pty Ltd will be liable to claim compensation from the other party for the loss suffered by the same. 

Reference List:

Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2 KB 528

Associated Newspapers Ltd v Bancks [1951] HCA 24 – 83 CLR 322

McWilliams Wines Pty Ltd v Liaweena (NSW) Pty Ltd (1993) 32 NSWLR 190

Bressan v Squires [1974] 2 NSWLR 460

Crown v Clarke (1927) 40 CLR 227

Hyde v Wrench (1840) Beav 334

Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256