As per the proposal given by the legal philosopher Herbert Hart, there are almost three types of secondary rules which are required by under legal system to enforce the rules of law:
Rule of recognition- this rule is developed for the purpose of preventing the uncertainty related to meaning of law. In other words, these rules provide certain meaning of the law. These rules also state the procedure how other rules get the authority, which means it determine the validity of other rules. This can be understood through example, enactment by Parliament or judicial precedent or customary practice.
Therefore, it becomes necessary for tribe to develop rules of recognition for the purpose of providing the clear view of the laws stated in the constitution, and it also help the other 20 families to understand the certain meaning of the law.
Rules of Change- for the purpose of amending the static nature of primary rules, it becomes necessary for legal system to develop the rules of change. These rules state the method related to make changes in the primary rules, which means how these rules can be replaced, added or deleted. It must be noted that rules of recognition can also state the procedure for making the changes. Therefore, while introducing and enforcing the rules, tribe must state the provisions related to the rules of change for the purpose of ensuring that primary rules are not absolute in nature and it can be changed as per the circumstances and need. These rules are also necessary for prepare the followers to adopt the changes.
Rules of Adjudication- there rules are considered as most important rules by Hart because these rules are developed for the purpose of providing remedy in case of inefficiency on the part of the social pressure. These rules gives power to the authorities for the purpose of determining whether primary rules have been broken, and it also provides procedure for seeking adjudication if these rules are broken. For enforcing the primary rules and ensuring that primary rules are followed, it is necessary that rules of Adjudication are followed and recognized at both individual and official level. Therefore, for enforcing the laws it is necessary to consider rules of adjudication.
After considered above stated rules, tribes ensured that these laws can be easily introduced and enforced among these 20 new families.
According to Hart, constitution of the Australia states the secondary rules. In Australia, conventions are also applied because legal system of the Australia is completely based on the English System.
Australian legal system mainly included two features that are adversarial and Inquisitorial. These features are stated below (Hot Topics, 207):
The most important feature of Australian legal system is that it is adversarial in nature, which means any issue between two parties related to any case are put forward by the legal representative for the purpose of getting decision by independent decision maker that is Court or Tribunal. The main aim of this decision maker is to hear the argument of both side parties and then apply the law. Decision maker does not conduct any investigation, and this feature of the Australian legal system is adopted from the British common law system.
On the other hand, inquisitorial system is completely different from the adversarial system, and this system is operated in some other countries also such as in European Countries. Under this system decision maker play very important and broader role. This can be understood through example, such as decision maker has power to questioning the witnesses, they have power to determine the type and admissibility of the evidence, and they have power to conduct the investigation also. However, from last 30 years concept of this system is adopted by the Australian legal system also, especially in the area of antidiscrimination law because in this area matter is investigated by the independent body before bringing the parties to the dispute together. It must be noted that, at both state and territory level tribunal is the body which is considered as the decision-making body for issues related to the discrimination. Investigation conducted by decision making body is relevant before the presentation made by the party (Law Teacher, n.d.).
Under Australian Legal system, Court applied common law for the purpose of solving the dispute between the parties, unless common law does not conflict with the statutory law. Statutory law is the law which is made by the parliament, and this can be Federal parliament or the parliament of a State or Territory. Laws made by parliament are introduced as bills and these bills are passed by the two houses of the parliament. These two houses approved the bills then such it becomes the Acts. These Acts are signed by the Governor-General on behalf of our Head of the State, the Queen.
The other type of law is common law which is applied by the Court for solving the issues. Common law in Australia is based on the British Common law. This law is developed by the Court on the base of precedents.
It must be noted that, statutory law always prevail common law. In other words, if any act was passed by the parliament which contradicts the common law then in such case common law will not be valid and Courts are bound to follow the Act passed by the parliament. Judges are not allowed to adopt any precedent for making the decision which is against the statutory law. However, Judges has power to interpret the statutory law and such interpretation can be used as precedent (Law teacher, n.d.).
Legal system of Australia adopts various principles, which help the public and society to maintain their trust in legal system. These principles are stated below:
Issue:
Whether Commercial Bank has right to execute the contract against Amadio, and whether Amadio was bound by the contract?
Rule:
Capacity to provide genuine consent includes complete understanding of the contract, and genuine consent is considered as the most important element of the contract. It must be noted that if genuine consent of the person is not present in the contract then contract is not legally binding on the parties. There are various factors through which genuine consent can be affected:
Unconscionable conduct considered as those transactions which are occurred between dominant and weaker parties, and this type of conduct is prohibited in both equity and common law.
Numbers of protections are offered by ACL to the consumer, and one of these protections stated that contract signed by person under unconscionable conduct is not enforceable (Australian Contract Law, n.d.).
Prohibition related to unconscionable conduct is stated under Section 20-22 of the ACL. While deciding any case, Court first considers provisions of section 21 and 22. If conduct of the person is not fall under section 21 then section 20 is considered by the Court for determining the issue under the principles of common law (Competition and Consumer Act, 2010).
Section 20 of the Act prohibits the corporation to engage in unconscionable conduct within the meaning of unwritten law. For the purpose of preventing overlap, section 20 is not applicable on those matters which fall under section 21. It must be noted that this section is identical in the terms of section 51AA of the Trade Practices Act.
Section 21 of the ACL prohibits the unconscionable conduct in relation to the supply of goods and services from the person. This section is not intended to be limited by unwritten law, and relevant factors are considered by the Court such as circumstances in which contract is created between the parties.
Range of the factors for the purpose of determining the unconscionable conduct is stated under section 22 of the ACL.
In other words, for determining whether there has been unconscionable conduct under section 21 of the Act, court will consider the factor stated under section 22 of the ACL. These factors include:
This can be understood through case law Lloyds Bank Ltd v Harrison. In this case, court stated that, those banks which were taken the guarantee from the surety against anything which have been conducted between the bank and the principle debtor then in such case bank was bound to inform the surety about any matter which was not naturally expected by the person. In other words, obligation related to disclosure arises only in that case when something unusual thing take place between the bank and the principle debtor.
In this case, both Mr. and Mrs. Amadio sign the contract of surety with the Commercial Bank of Australia, for the purpose of guaranteeing the debts of the company of their son. Their son uses some misrepresentations for the purpose of inducing them to sign the mortgage deed.
At the time of signing the Contract Mr. Amadio was 76 years old and he had very little understanding of reading English language. On the other hand, Mrs. Amadio was 71 years old, but she had no skills of English language. Therefore, they were not able to understand this document clearly, and Mr. Amadio was under representation at the time of signing the contract that liability was limited up to $50000 only, but in actually they were liable for the complete amount. This belief was induced by the misrepresentation made by Vincenzo’s.
It is clear from the above facts that bank was under the obligation to reveal true facts to Mr. and Mrs. Amadio about the true position of the accounts of the company, and bank does not compiled with this obligation. Therefore, bank was also liable for the misrepresentation made by Vincenzo’s.
Bank also fails to provide expert advice to Mr. and Mrs. Amadio, which also make them liable towards the Amadio. Therefore, this transaction was considered as unconscionable, and equity provides relief for the same.
Conclusion:
In this case, court stated that Amadio was induced by the representation made by his son and believes that liability was up to $50000 only and lasts up to six months. Judge stated that Mr. and Mrs. Amadio would not sign the contract if they were aware about the true facts. Therefore, they were not liable under the contract.
Issue:
Whether Betty has any option to terminate the contract between Betty and Ram?
Law:
There are some cases in which contract are terminated by the parties because of the supervening event which is not in the control of the parties, and this doctrine is known as the doctrine of frustration. This can be understood through case law Taylor v Caldwell (1863) 3 B & S 826.
This case was considered as the fundamental case under the contract law. This case was very important, as Murray stated that “frustration developed to alleviate harshness of absolute obligation rule”. In other words, Court discharges the parties from all liabilities under some particular circumstances.
In this case, music hall was hired by the plaintiff for the purpose of conducting four grand concerts. Great expense was incurred by the plaintiff for arranging these concerts. However, music hall was destroyed just a week before the first concert because of the accidental fire. Plaintiff file suit against the defendant for breach of the contract for failing to provide the hall, and claim damages from the defendant.
For the purpose of considering the full effect of this case, court determines two cases for understanding the working of the doctrine and these cases are Krell v Henry and Herne Bay Steamboat Co v Hutton.
In Krell, flat was hired by the defendant from the plaintiff. Later, plaintiff sue defendant for non-payment of the rent. In this case, Court stated that contract was frustrated because of the non-occurrence of the event. In this foundation of the contract was Coronation Procession. On the other hand, in another case of Herne bay, defendant rented boat from plaintiff for the purpose of taking the passengers to watch Naval Review which was organized as part of the Edward VII events day. In this contract is not frustrated because neither the review not the fleet was considered as the foundation of the contract.
Therefore, in case Taylor vs. Caldwell plaintiff was not succeeded in his claims because it is not possible for defendant to perform the contract.
Application of doctrine- this doctrine is applied in very specific situations. Generally, it applied when particular event prevent the performance of the contract, and situation is completely different from the anticipation of the parties. In case, event is already anticipated by the parties or event is mentioned in the terms of the contract then doctrine of frustration is not applicable.
Effect of doctrine- under common law if contract is not performed because of frustration then contract is automatically terminated. The loss incurred to parties because of the termination of the contract is lie with the party where it falls. However, this rule has some exceptions also.
Statutory modification- it means, that there are number of cases harshness caused because of the common law rule is avoided by the Court (Australian Contract law, n.d.).
In this case, doctrine of frustration applied as Ram failed to perform the contract because of the heavy rains and all the coal mines owned by ram was flooded. This event is not in the hands of the either party. Heavy rains and flood can be considered as the supervening event which is not in the control of the parties.
In the present case, contract between Ram and Betty was discharged by frustration and Betty can terminate the contract under the doctrine of frustration.
Conclusion:
Contract can be terminated under the doctrine of frustration.
References:
Australian Contract Law. Commercial Bank of Australia v Amadio (1983) 151 CLR 447. Retrieved on 1st September 2017 from: https://www.australiancontractlaw.com/cases/amadio.html.
Australian Contract law. Discharge by Frustration. Retrieved on 1st September 2017 from: https://www.australiancontractlaw.com/law/termination-frustration.html.
Australian Contract Law. Unconscionable Conduct. Retrieved on 1st September 2017 from: https://www.australiancontractlaw.com/law/unconscionable.html.
Commercial Bank of Australia v Amadio (1983) 151 CLR 447.
Competition And Consumer Act 2010 – Schedule 2 The Australian Consumer Law- Section 20.
Competition And Consumer Act 2010 – Schedule 2 The Australian Consumer Law- Section 21.
Competition And Consumer Act 2010 – Schedule 2 The Australian Consumer Law- Section 22.
DlsWeb. Overview of the Australian Legal System. Retrieved on 1st September 2017 from: https://www.dlsweb.rmit.edu.au/toolbox/legal/OFFICE/T00/T00_A/t0_lesy.html.
Herne Bay Steamboat Co v Hutton [1903] 2 KB 683.
Hot Topic 60, (2007). Australian Legal System. Retrieved on 1st September 2017 from: https://www.utas.edu.au/__data/assets/pdf_file/0017/334232/aust_leg_syst_601.pdf.
Krell v Henry [1903] 2 KB 740.
Law Teacher. Distinguishing Features Of The Australian Legal System. Retrieved on 1st September 2017 from: https://www.lawteacher.net/free-law-essays/constitutional-law/distinguishing-features-of-the-australian-legal-system-constitutional-law-essay.php.
Law Teacher. Inquisitorial and Adversarial System of Law. Retrieved on 1st September 2017 from: https://www.lawteacher.net/free-law-essays/constitutional-law/inquisitorial-and-adversarial-system-of-law-constitutional-law-essay.php.
Taylor v Caldwell (1863) 3 B & S 826.
Trade Practices Act- Section 51AA.
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