Australia’s Legal System

Business Law Assignment 1. Australia’s legal system is based on the English legal system.” To what extend is this statement correct? Discuss. It is widely known that Australia continent has been settled by Great Britain from the late 18th century. However, the English legislation system is the foundation of Australia law that is still needed to be discussed before reaching any conclusions. Following are the related factors which clarify this issue. Firstly, it is necessary to take a look back to the Australia historical background to understand its law development procedure through the time. According to Australia’s history the first inhabitants may have been ancestors of modern Indigenous Australians. After this, to the year of 1770, James Cook captain found and gradually formed Australia. As a rule of life, there are people, there are regulations. At the period of beginning, it is easy to comprehend that Britain would apply their law to Australia which is considered as settled colony of England if there was some judgement events happened. This aspect is clearly revealed via the case of Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1. In this situation, Eddie Mabo and others argued that they had the right to possess the land in the islands as the way of customary title since the time immemorial. However, the decision of this case basing on the English law was that the even though Australia legal system recognised the native title which had not been accepted before, modern Australia was still much more practically tremendous[1]. Through this case we can see that the official introduction of English law to Australia and the progression in its law by this time. In addition to this, this is supported by Blackstone, “English law would become the law of a country outside England either upon first settlement by English colonists of a conquered or ceded country.” Therefore, the English law would be the good indicator for Britain to execute in their situations in this infant colony at that time. Time by time, English law has been well established and settled in deciding legislation of this territory. Secondly, examining of the development of law in Australia also helps to track back its origin. On the date of their own original settlement, in each state of Australia the English law was applied as the foundation law as a settled colonies or infant colonies. Nevertheless, the time after first settlement it was blurry that should New South Wales have been treated as the settled colony because in early time this state had Governor already exercised its power over the inhabitants. Therefore, it caused the argument on this issue. Finally in 1823, the New South Wales Act was passed by the United Kingdom Government. This Act enables the New South Wales’s Government fully right to pass the laws provided that it was not against with Britain legal system. Then it was witnessed the first Australian Courts Act in 1828 and its application on New South Wales and Van Diemen’s Land[2]. All the cases laws was assured to reflect the English case law but this did not mean that all English statue passed after this date automatically considering as Australian law, except for it deliberately expressed to do so. Anyways, it still reflects that Australian law has been gradually developed from the English legal system. Finally, seeking how the independent Australian Act and the Constitution have formed clearly clarifies the aspect of the Australian legislation is heritage from the English law. To the year of 1986 United Kingdom Parliament officially passed the Australian Act as per required by Commonwealth and state parliament. From this Act, United Kingdom parliament no longer has power on Commonwealth and Commonwealth of Australia is seen as a sovereign, independent and federal nation[3]. This confirms that Australian law system is separated from the English law. However, again it can clearly see that this Act just effects till the acceptance of the UK Parliament. All above factors are sufficient enough to prove the legal institutions and traditions of Australian law are mono-cultural in character, reflecting its English origins.

2. Discuss the importance of the case of Central London Property Trust Ltd v High Trees House Ltd (1947) KB 130.

The case of Central London Property Trust Ltd v High Trees House Ltd is a case of seal lease contract made on September 24, 1937. In this case, Central London Property Trust Ltd (CLP) was the plaintiffs and the defendants was High Trees House Ltd. – a subsidiary of the CLP, a tenancy of a block of flats with the lease term of 99 years from the time of 29th September, 1937. Two sides agreed the ground rent of 2,500l. per annum. The block of flat was under new condition but it could not be fully occupied since the beginning of the war, people moved away from London because of booming. Under this special situation, it is obviously that the lease could not be paid enough to gain the profit. Therefore, the directors of two companies decided to make a writing arrangement under the war condition prevailing. On January 3, 1940, the plaintiffs wrote to the defendants to confirm the ground rent should be reduced as from the commencement of the lease to 1,250l./annual, and on April 2, 1940, a confirmatory resolution was officially effected. From the time of adjusted arrangement, the defendants started paying the half reduced rent to the beginning of 1945 when the block were fully rent and thereafter. On the other side, in September 1945, the plaintiff found out the rent should have been back its fully normal amount of 2500l. Therefore, he requested the defendants to pay the full rate as first agreement. And the amount of 625l., being the amount represented by the difference between rent at the rate of 2,500l. and 1,250l. per annum for the quarters ending September 29, and December 25, 1945 was required to recover by the defendants. In response of the defendant side, they pleaded that the letter of January 3rd 1940 clearly constituted that the rent should be 1250l. and this meant to the whole lease term. On the other side, the contract was under seal. Therefore, it could not be changed by a parol agreement or an agreement in writing not under seal. But the court of equity allows the variation by a simple contract of a contract under seal by preventing the party who has agreed from suing under the deed (Berry v. Berry [FN5], Swift said) And the defendants rely on the doctrine of estoppel, as Denning Jheld estoppel to be, “a promise was made which was intended to create legal relations and which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made and which was in fact so acted on”. In fact, the reduced rent was enable the defendants run their business, the defendants relied on the promise. The plaintiffs were made a gratuitous promise. As the result, the plaintiffs were estopped from claiming any rent beyond 1,260l. per annum for the whole period of the lease. Nevertheless, the plaintiffs required for the full amount from the time the full rent is payable, not suing for the full rent back dated to 1940. The case should be applied properly. And the Promissory Estoppel is known as the “doctrine of fairness”. It was given judgment for the plaintiff company for the amount claimed.[4] The case of Central London Property Trust Ltd v High Trees House Ltd (1947) KB 130 plays a paramount role in creating the doctrine ofpromissory estoppel. In theHigh Treescase Lord Denning commented,that such an agreement should now be enforceable under the doctrine of promissory estoppel. Promissory estoppel differs from common law because it has less strict requirements and it may arise from promise of future conduct or intention. It can be used both in as a shield to retrieve past damage or as a sword for future damage. Promissory Estoppel is an extension doctrine to ‘stop’ person from retrieving his right that he already promise to waive or let go, or a failure to make a true representation or failure to tell the other party when the changes happen that influence his ability to fulfill his promise fully or partially. Promissory Estoppel is known as a doctrine concerned with equity which has help for the missed factors in contract law. It is used as an extension of conventional contract law where consideration is a prominent and to assure justice for the weaker party from the exploitation of the stronger part by the limitation of law or by using loop holes in law. The case of High Trees opens a new road to the rule in Pinnel's casethat “Payment of a lesser sum on the due day for payment is no satisfaction of the whole obligation.” Despite it is not sure all House of Lords’ decisions would have the same decision as this case, but definitely Denning blew the new wind into law of England and Wales. By changing the way estoppels is viewed by English law, Lord Denning reaffirmed doctrine of Promissory Estoppel. The High Tress case acted as a vessel in which the doctrine of promissory estoppel was reinstated, in the English and Australian legal systems.

3.

Issue Are the Club and Peter liable to John in negligence? Relevant Law/Rules As the Civil Liability Act 2003 (Qld), section 9, 10, 13 and 18 reflect the relevant principles regrading to duty of care. In particular, Section 9 clearly states the general principles concerning to this issue. They consist of the statue that a person does not breach a duty to take precautions against a risk or harm that they should have them in mind if the risk was not foreseeable and significant; in the circumstances, reasonable person in the position of the person would not have taken the same standard of care that a reasonable person would have exercised. Then how to identify whether a reasonable in the position of the person would have taken precautions, the following factors should be examined: the probability that harm would occur if cares were not taken; the likely seriousness of the harm; the burden of taking precautions and the social utility of the activities that causes harm. These principles have been originated from the Common Law. It can be taken the modern doctrine in the Lord Atkin in Donoghue v Stevenson (1932) as a relevant case. This case developed determination of a duty of care. In that case, a duty of care could exist in any situation as long as loss, damage or injury to one party was reasonably foreseeable and the relationship between those parties sufficiently close or other specifically defined to establish requisite one to take care not to put the other at risk[5]. And other cases such as Polland v Trude (2009) 2 Qd R 248 is clearly relevant in determining if the required standard of care has been met or the duty of care has been breached. Other principle in Section 10 states a proceeding relating to liability for breach of duty: the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm; the fact that a risk of harm could have been avoided by doing something in a different way to avoid the risk does not mean that entity is necessarily liable; and the subsequent action after harm has been suffered does not necessarily mean that the entity will be liable just because they did not take that precautions before the harm was suffered. An obvious risk is identified as sector 13 as following : an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person; obvious risks include risks that are patent or a matter of common knowledge; a risk of something occurring can be an obvious risk even though it has a low probability of occurring; a risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable; to remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk. Section 18 states that dangerous recreational activity means an activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person. Application First of all, it is reasonably foreseeable and significant that the Club did not take precaution against a risk or harm like stopping golf ball from landing on the side of the fairway which led to the harm to John. As a reasonable action, the Club should have put the protective net to avoid the ball possibly hit to the customer waiting in the tree line to the side of the fairway while the other are playing. The possibility of ball striking to the person to the side of the fairway is obvious. The Club has the duty to take care not to put their customers at risk. This principle was derived from the case Donoghue v Stevenson’s neighbor test. However, should the Club build a netting fence to possibly eliminate the hazard as a reasonable person would have taken precautions. The duty of changing the rules or using different kind of protective structure may reduce the possibility of players being injured. Nevertheless, it is reasonable to see that the burden of taking these precautions is quite big, especially the large space like in the golf field. It is burdensome for the Club to build up a protective system around the tree line to the side of the fairway. Would a reasonable person have taken the precautions? A golf club is considered as a high social utility which provide enjoyment, relaxation or leisure for society. However, the seriousness if someone gets struck is quite considerable. Nonetheless, although there was a risk that the balls would be hit out of the playing ground, but the possibility of risk occurring is so minimal. It is probably possible to adopt preventative measures that will avoid any but the most outrageously unexpected injuries occurring to any person, the law does not demand that level of precautions. In any circumstances, a reasonable would not think it is necessary to take the precautions. Besides, according to section 10, the burden of taking similar precautions like establishment of preventative measures is quite impossible and taking those precautions is not necessary. If the club took any precautions after John was hit to stop other from being hit would not necessarily mean that they will be liable. The risk of harm here was the risk that one player could be struck and injured by a ball hit by another player. In terms of section 13 that was an obvious risk. And as section 18 states that a significant degree of risk of physical harm to a person as a dangerous recreational activity should be involved. Therefore, John should aware of it and have to undertaken it voluntarily. On the other side, according to section 13, it is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk. Therefore, Peter’s mis-hit his ball which flew to John and caused John’s injuries is considered is not a significant risk. Peter would not take a duty of care in this case when it was not reasonable to foresee this risk. A reasonable in the position of the person would have taken precautions as Peter just could called out “ watch out John” as standard of care that a reasonable person would have exercised. Conclusion The Club and Peter were not liable in negligence in causing the risk of harm of player in the tree line to the side of the fairway being hit by a golf ball. Student Name: TRANG Thi Xuan Mai Student ID: 12878519 Page 1

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[1] LexisNexis Butterworths. (2011). Understanding Business Law. “Introduction of English law to Australia”. Page 6-7 [2] LexisNexis Butterworths. (2011). Understanding Business Law. “Development of law in Australia”. Page 12-13 [3] LexisNexis Butterworths. (2011). Understanding Business Law. “The Constitution”. Page 13 [4] Incorporated Council of Law Reporting For England & Wales (1947) K.B. 130. “Central London Property Trust Limited v. High Trees House Limited”. Visited on 12.01 from https://www.thomsonreuters.com.au/product/AU/files/720502512/contract_p2_central_v_high.pdf [5] LexisNexis Butterworths. (2011). Understanding Business Law. “ The duty of care”. Page 740

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