Mildura Office Equipment & Supplies Pty Ltd V Canon Finance Australia Ltd [2006] VSC 42 And The Benefits Of Alternative Dispute Resolution

Background of the Case

1: This case was heard at Supreme Court Of Victoria.

2: DODDS-STREETON J was the judge of this case, and she addressed as ‘Your Honur’. Generally, she wears wig and a robe.

3: Medium neutral citations are considered as unreported judgments. In other words, it is a method through which unreported judgments are cited, and these judgments does not discriminate between in judgments published either in electronic or in print formats.

Citation related to this case: each Court has an identifier, and every year judgments get running number. Generally, paragraphs related to judgment of the case are numbered for increasing the precision in pinpoint citation such as:

• Name of the parties+ [publication year] + abbreviation of Court+ judgment number.
• Pinpoint reference must be in square brackets, and followed by “at”

4: unilateral contract are those contracts in which acceptance related to offer is given by actual performance instead of mere promise. This can be understand through example, offer for reward for returning the jewelry is only accepted by returning the jewelry.

5: Definition of unilateral contract is established by case law Carlill v Carbolic Smoke Company Limited [1] (“Carlill v Carbolic”), in this case consideration is not present, and it was nudum pactum. Two considerations are determined in this case, first consideration is use of carbolic smoke ball as per the directions stated in the advertisement, and second consideration is benefit received by the company from sale of carbolic smoke ball.

6: Australian case which defined the formation of unilateral contract is Carlill v Carbolic Smoke Company Limited [1] (“Carlill v Carbolic”).

7: the most reliable witness considered by DODDS STRETTON J was Mr. Blancato, and in case of any conflict he prefers the evidence of Mr. Janssen.

8: in this case, Court stated that there is no need to provide injunctive or declaratory relief, because no evidence is presented which shows that plaintiff currently holds any machines for which defendant is entitled.

9: plaintiff claims that the representatives of defendant during the five minute comic skit at a Canon Australia business dealers’ conference in February 1998, entered in contract for selling all Canon photocopiers which are subject to CFA rental agreements within the area of dealer for only $, and when these agreements are expired defendant wants their customers in lieu of consideration to enter rental agreements with the defendant (McLauchlan, n.d.).

10: argument of plaintiff was failed because plaintiff does not present its argument cases discussed in vroon, instead for completing his arguments he stated that neither category applied in the present case. However, it was no difficult to find out at trial what was said between the parties. Further evidence stated by parties related to communication between parties after the conference does not state that there was any contract between the parties.

Issues Debated in the Case

11:

• In case of appeal citation of the case is Mildura Office Equipment & Supplies Pty Ltd v Canon Finance Australia Ltd [2006] VSC 42.
• Court rejects the appeal of the plaintiff because evidence provided by plaintiff that was Mr. Janssen’s statement was not consistent, shifting and sketchy, and there was lac of details.
• As per Kellem JA, unilateral contract in this case is not exist and he also stated that evidence provided by plaintiff is not consistent as per his arguments.

12: in my opinion, this case was treated fairly, because claim presented by plaintiff was the only case in the contract and that’s why it faces number of hurdles. Plaintiff was not succeeded in showing that unilateral contract exist between the parties from the offer made by defendant at the conference in February 1998, and that offer was accepted by the plaintiff because of its customers’ entry into rental agreements with CFA. There is one more reason that is plaintiff does not currently holds any machinery for which defendant is entitled. Witnesses provided by plaintiff were not consistent, imprecision, and evidences are lack of detail.

According to the Hon Michael Kirby, stating the relationship between courts and Alternative dispute resolution (ADR) is an important challenge, and it is not feasible and advisable that ADR take over all the functions of the Court. The main challenge in front of all is to ensuring an accurate relationship between adversarial system and ADR, and it is also considered as crucial process. This relationship must be static, and the success of ADR depends on integrity, skills, and training of the person involved.

 However, in practice things are little different because people consider ADR more effective as compared to adversarial system. In this essay we state the comparison between two and lastly conclude this essay with brief conclusion.

In common law, judicial system features the adversarial system for the purpose of legal proceedings, and this model requires participation from two sides. These parties argue against each other on the basis of facts and the applicable law before the Court. The two important elements of this system are control of case within the hand of parties and second is independent and impartial judge (Legal service Commission, n.d.).

ADR is described as resolution of dispute without the interference of the Court, and increasing cost pressure and delay decision in adversarial system increase the focus on ADR processes.  There are number of forms of ADR, and these forms are meditation, arbitration, expert determination, and early neutral evaluation (Legal services commission, n.d.).

There are number of negative comments stated on adversarial system, and these comments are related to efficacy, suitability and sustainability of the system in common law countries, and reason for that is working process of judiciary, government agencies, lawyers and other stakeholders. Responses to these negative comments are increasing trend of ADR forms and seek justice from non-adversarial approaches. However, in last two decades there is rapid growth in institutionalization of ADR. In other words, process of ADR greatly influences both legal culture as well as legal process in both civil jurisdictions and criminal jurisdictions.

Citation Related to the Case

According to the report of Australian Law Reform Commission (ALRC), long time back in 1999 number of processes such as case management, court or tribunal processes which are connected with ADR, and discretionary rules related to evidence and procedure have been modified as adversarial system. However, Court which solves the problem is underpinned by various notions related to restorative justice and therapeutic jurisprudence, and now these Court play important role in justice system of Australia (DCA, 2005).

In case of family law practice, collaborative law has great influence. Some other ADR approaches, especially meditation which was drafted in the process of adversarial system. It must be noted that this development not only confined to Australia. Framework related to ADR process is decided by the National Alternative Dispute Resolution Advisory Council (NADRAC), and this outline state the number of uses of ADR process in different context such as community dispute resolution, services related to family mediation, courts and tribunals, statutory agencies, industry schemes, public policy dispute resolution, commercial ADR, and internal organization ADR.

As per Genn, case elated to private meditation has been resolved quickly, cheaper, and less stressful as compared to trial. This process increasingly used in the form of alternative or supplement to public Courts, and it is also considered as equal and preferable method for solving disputes (Barron, Corbin & Gutman n.d.).

As per experts, these new ADR approaches related to legal disputes will increase the justice in number of areas, and it also help in reducing the negative factors which are experienced in the adversarial system of justice because litigation system includes huge cost and time investment. However, these developments are considered as danger also because it is necessary that rapid growth of ADR process must show that parties related to dispute actively and efficiently participates in the dispute, and such dispute is suitable for ADR, procedure conducted in ADR is Fair and accessible, and person who is handling this process is trained person.

According to the Hon Michael Kirby, it is necessary to address two issues related to this process, first issue relates with the correct and evolving relationship between ADR and litigation process, and second issue relates with the success of both the processes relates with the integrity and training of person involved. It must be noted that each process has its place, and both serves their part in the justice system of Australia. Increasing trend of ADR will lead to negative impacts on justice system if we continuously ignore the adversarial systems because this system also plays significant role in solving disputes. According to Lord Neuberger, litigation system ensures the enforcement of rights and rule of law in which ADR system operates and effectively used. Increasing trend of ADR will result in overestimation of ADR value, and people use this concept in those disputes also in which it is not effective (Victoria government, n.d.).

Definition of Unilateral Contract

On the other hand, adversarial process influence the ADR process inappropriate way, and it also affects the potential benefits of this process. ADR process also negatively affected because of the lack of integrity and expertise of persons who are handling this process. Therefore, it is necessary that balance between both the processes must be maintained (Caenegem, 1999).

Conclusion:

After considering all the facts related to litigation system and ADR process, it is clear that both systems are equally important for Australian judicial system. It is necessary to maintain the relationship between both adversarial system and ADR system.

At last it is concluded that both systems are equally beneficial and they have their own advantages and disadvantages. Use of ADR over adversarial is not advisable because there are number of matters which are not solved by ADR process.

Issue:

Whether there is any contract between Bastian and Penny?

For valid contract it is necessary that parties must entered into valid agreement, and four elements are necessary to constitute valid agreement and these elements are offer, acceptance, consideration and intention to create legal relation between parties.

Offer- offer is a communication between two parties in which one party promise to do something if other party promises to do something or not do something in return. It must be noted that if once offer is rejected by the offeree then he cannot accept that offer, and there are number of ways through which offer can be terminated such as direction rejection of offer and by making the counter offer. This can be understood through case law Hyde v Wrench (1840) Beav 334. In this case Court stated that offer made by P was considered as counter offer and rejection of original offer.

Acceptance: acceptance is another important element of valid contract, and it is necessary that acceptance must be communicated by offeree to offeror (ACL, n.d.).

In the present case, there is no valid contract between the parties because necessary elements are no present, as Bastian rejects the offer made by Penny by making counter offer.

Conclusion:

There is no valid contract between the parties.

Issue:

Whether service provider can sue peter and his parents?

Law:

For valid contract, it is necessary that parties must have contractual capacity between them, and there are number of person in which there is lack of capacity to enter into contract. In other words, contract with them will not be enforceable against them.

Minor is not capable to enter into contract, and both common law and related statute restrict the capacity of minors to enter into contract. There is general rule if any person who does not completed age of 18 entered into contract then such contract is voidable. This can be understand through case law that is Nash v Inman, [1908] 2 KB 1.

In other words, it is not possible for person enforces the contract with minor, and in case of any breach party cannot sue the minor on behalf of that contract.

In the present case, Peter is minor and any contract with him is voidable, because peter has no capacity to enter into contract. In other words, Peter does not complete the age of 18, and as per aw he is minor. Any contract with peter is voidable, and service provider cannot sue peter for any breach.

Conclusion:

Service provider cannot sue Peter and his parents.

References:

ACL. Agreement. Retrieved on 1^st may 2017 from: https://www.australiancontractlaw.com/law/formation-agreement.html#offer.

ACL. Capacity to Contract. Retrieved on 1^st may 2017 from: https://www.australiancontractlaw.com/law/formation-capacity.html#minors.

ACL. Carlill v Carbolic Smoke Ball Co. Retrieved on 1^st May 2017 from: https://www.australiancontractlaw.com/cases/carlill.html.

Baron P. Corbin L. & Gutman J. Throwing Babies Out With The Bathwater?— Adversarialism, Adr And The Way Forward. Retrieved on 1^st may 2017 from: https://www.austlii.edu.au/au/journals/MonashULawRw/2014/15.pdf.

Caenegem, W. Advantages and disadvantages of the adversarial system in criminal proceedings. Retrieved on 1^st may 2017 from: https://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1223&context=law_pubs.

Carlill v Carbolic Smoke Company Limited [1].

DCA. Administrative justice and alternative dispute resolution. Retrieved on 1^st may 2017 from: https://webarchive.nationalarchives.gov.uk/+/https:/www.dca.gov.uk/research/2005/8_2005_full.pdf.

Hyde v Wrench (1840) Beav 334.

Kirby, M. ‘ADR in Australia — Without Fear or Favour? (Speech delivered at the Institute of Arbitrators and Mediators Australia Annual Conference, Melbourne, 30 May 2009) 21–2. Retrieved on 1^st may 2017 from: https://www.michaelkirby.com.au/images/stories/speeches/2000s/2009+/2361.Iama_Conference_May_2009.pdf.

Legal Services Commission. Adversarial model. Retrieved on 1^st May 2017 from: https://www.lawhandbook.sa.gov.au/ch27s05.php.

Legal Services Commission. Alternative dispute resolution. Retrieved on 1^st May 2017 from: https://www.lawhandbook.sa.gov.au/ch27s10.php.

McLauchlan, W. D. Contract Formation, Contract Interpretation, And

Nash v Inman, [1908] 2 KB 1.

Subsequent Conduct. Retrieved on 1^st May 2017 from: https://www.austlii.edu.au/au/journals/UQLawJl/2006/7.pdf.

Victorian Bar. The Honourable Justice Julie Anne Dodds-Streeton. Retrieved on 1^st May 2017 from: https://www.vicbar.com.au/GetFile.ashx?file=GeneralFiles/Retirement%20of%20the%20Hon%20Justice%20Dodds-Streeton%202%20April%202014.pdf.

Victorian government. Improving alternative dispute resolution.  Retrieved on 1^st may 2017 from: https://www.lawreform.vic.gov.au/sites/default/files/Chapter%2B4%2C%2BChapter%2B5.pdf