Whether Karen can terminate the contract with Gym & Tonic, and if she is liable to pay the $100 fee?
When two parties intent to carry on any kind of contractual statements, then, there are several negotiations and statements that are exchanged amid the parties which comprise of contractual terms. It is necessary in law that when the statements are made then the same must be of such that the same are made with honest intention and must be specified without hiding the truth of the statement. (Ward, 2012)
Now, when one party to the contract makes a statement of fact to another party with an intention to induce such party, so, that a contract can be made with him, then, such statement can be considered as misrepresentation provided that the statement so made must not be true in nature and this fact must be in the knowledge of the person who was making the statement. The false statement was made in order to deceive the relying party. It is necessary that the misrepresentation should not be made part of the contract as contractual term. In the leadin g case of Smith v Land & House Property Corp (1884) and Beach Petroleum NL v Johnson (1993) the statement of opinions and future intention was considered as statement of fact. It is necessary that the relying party must actually rely on the misrepresentation before making a contract and is held in the leading case of Davies v London & Provincial Marine Insurance Co (1878). (O’Donovan, 2005)
On such grounds, the relying party has the power to consider the contract as non binding in nature as the contract is suffered with misrepresentation. The aggrieved party can also seek damages.
This common law of misrepresentation is now given legislative framework by establishing provisions under the Australian Consumer Law. Section 18 submits that no person in commerce and trade must get himself engage in any action of conduct that is misleading and deceptive in nature. The acts are still considered to be in violation of section 18 if they are also likely to deceive or misled in any given situation. Section 18 of the ACL deals with misleading and deceptive conduct and the main elements includes: (Folyes, 2016)
Section 29 of ACL also imposes a prohibition on a person who is engaged in commerce and trade relating to the supply of services and goods and makes sure that no statements must be made which are misleading or false in nature which are relating to the novelty of the services/goods or the style, grade, value, quality, standard, etc and is analyzed in the leading case of ACCC v Valve Corporation (No 3) (2016). (Corones, 2012)
If there is violation of section 18 or section 29 of ACL, then, the aggrieved party has every right to sue for:
Karen wises to get fit and thus look for a local gym. She found an advertisement given by Gym & Tonic. As per the advertisement, there were few claims that were made, however, it is submitted that the same are found to be in violation of section 18 and section 29 of the ACL. This is because:
It is submitted by the gym that it is offering the services of the gym at a reduced price of $30 per month in place of original price of $60 per month. It is submitted that the statement so made was made by the gym during its course of business but the same is made with an intention to induce the customers so that they took the services of the gym. A deception is made because one of the friends of Karen, Will, submitted that the gym has never reduced the price as claimed by the gym. This is because originally the prince of the gym was $40 and it was never $60. Thus, this depiction is a declaration of truth which was not true and which was made with the intention to deceive Karen.
So, there is a clear violation of section 18 of the ACL on the part of gym.
Thus, there is clear violation of section 18, section 29 of ACL and the common law principle if misrepresentation by gym. So, Karen can sue the gym for damages and her fees of $ 100.
Conclusion
It is thus submitted that Karen has the right to sue gym for the violation of both the common law and the Australian consumer law and she can claim her fees back and also sue the gym for the loss and harassment that is suffered by her.
Analysis of Mabo and others v. Queensland (No. 2) [1992] HCA 23.
Solution 1
In the Mabo case, the native title was being claimed over a particular island. The name of the island was Mer in the Torres Strait . The Island was located between Papua New Guinea and Australia.
The land was occupied by the aboriginal peoples. The same were Eddie Koiki Mabo, Sam Passi, David Passi, Celuia Mapo Salee and James Rice. These were the persons who began their legal claim over the land on 20th May 1982. (Aiatsis, 2018)
Solution 2
In the Mabo case, the claimants were successful with their claim. There were 6 judges which affirmed that the people of the Meriam have traditional ownership over the land. It was held by the judges that because of the British Possession, the title of the people of Meriam was not destroyed or eliminated. The Claimants were entitled to the possession of the land against the whole world. They have the right to use, Possess, enjoy and the right if occupation over the lands of the Murray Islands.
According to Justice Brennan’s judgment in the Mabo case, there were some observations that were made by him to which Mason CJ and McHugh J agreed. The observations were made regarding the situations when the base of native title has vanished. It was submitted that the title could be lost after the European Settlement. He submitted that when the group or the clan agree to comply to the laws and the customs which are based on the traditions of such group or clan thereby maintain the traditional connections then the traditional title continue to remain otherwise the same will disappear.
As per Graeme Neate, President of the National Native Title Tribunal there is a difference between “land rights” and “native title”. The basic difference is that under statutory land rights, the groups and schemes of the Indigenous Australians are given by the Crown or by a simple title but the Native Title is present to acknowledge the existing and continuing rights of the Indigenous Australians. (Neate, 2001)
In the Mabo decision there were many political and legal questions that were raised. In order to gave respond to such questions, the Parliament of Australia has enacted the Native Title Act 1993 under which National Native Title Tribunal was formulated.
Later in the Wik Peoples v Queensland (1996) case there was an amendment that was brought in the Native title Act by brining the Native Title Amendment Act 1998. The decision was pronounced by the High Court on 2rd December 1996. The main issue that was dealt was whether the presence of statutory leases will result in the cessation of the Native title Rights. It was decided that the presence of statutory leases will not result in the cessation of the Native title Rights. Thus, the native title rights co exits with the statutory leases.
Yorta Yorta Aboriginal Community v Victoria – [2002]
The Yorta Yorta people were among the first to lodge a native title claim after the Mabo decision. The claim was referred on May 1995 before the Federal Court by the Native Title Registrar. The ase ran full length and was decided on 12th December 2002 by the High court ceasing the hopes of the people of the Yorta Yorta regarding their native title.
The case was not successful as the same was decided against the people of Yorta Yorta. the people of Yorta Yorta have made a claim native title over the waters and the land of Northern Victoria and the Southern New South Wales. Their claim was dismissed by the Federal Court and thus an appeal is made to the High court. The appeal was also dismissed by the High Court.
The claim was unsuccessful as there were no evidence which can establish that the people of Yorta Yorta still hold the traditional lands as per their customs and the traditions before the end of the 19th Century. Thus the people do not have the real understanding of their real traditional customs and laws. Section 223 (1) of the Act was relied on by the High Court and it was submitted that the native title to be ‘the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters where…the rights and interest are possessed under the traditional laws acknowledged and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders’
Emphasis is given to the word traditional and it was submitted by the High Court that the term does not imply the transfer of the terms from mouth to mouth from generations but the customs and laws are considered to be traditional when the same are based on the pre-sovereignty laws and customs which implies that the same are acknowledged by the ancestors.
References
Damian Ward (2012) Contract Negotiation Handbook: Getting the Most Out of Commercial Deals. John Wiley & Sons.
James O’Donovan (2005) Lender Liability. Sweet & Maxwell.
Stephen G. Corones, The Australian Consumer Law, 2012. Lawbook Company.
ACCC v Valve Corporation (No 3) (2016)
Beach Petroleum NL v Johnson(1993) 115 ALR 411;
Mabo and others v. Queensland (No. 2) [1992] HCA 23.
Davies v London & Provincial Marine Insurance Co (1878) 8 Ch D 469, 475.
Smith v Land & House Property Corp(1884) 28 Ch D 7.
Wik Peoples v Queensland (1996).
Yorta Yorta Aboriginal Community v Victoria – [2002] HCA 58
Aiatsis (2018) OVERTURNING THE DOCTRINE OF TERRA NULLIUS: THE MABO CASE < https://aiatsis.gov.au/sites/default/files/products/research_outputs_statistics_and_summaries/overturning-the-doctrine-of-terra-nullius_0.pdf>.
Graeme Neate (2001) Indigenous land rights and native title in Queensland: A decade in review. https://www.nntt.gov.au/Information%20Publications/Indig%20land%20rights%20and%20nt%20in%20Qsld%20Neate%20August%202001.pdf.
Folyes (2016) MISLEADING AND DECEPTIVE CONDUCT,< https://www.foleys.com.au/resources/Misleading%20and%20Deceptive%20Conduct_160726.pdf>.
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