Question one – Case study
This case was heard by the Supreme Court at Brisbane in the state of Queensland. The judgment was delivered at Brisbane by Judge Fryberg on the 24th January, 2011.
The judge in the case was Fryberg J. The case was heard on the 2nd and 3rd December, 2010.
The Plaintiff in the case is Ms Mee Wah To, a landlord who owns a parcel of land located at 33 Lisson Grove, Wooloowin. The Defendant on the other hand is Miss Eugene Choi, a tenant of part of the land owned by Miss Mee Wah To.
The counsel for the Plaintiff/respondent is P G Bickford. On the other hand, the plaintiff/respondent’s solicitor is the firm of Gerald Batt Lawyers.
The counsel for the defendant/applicant is J S Wright. On the other hand, the defendant/applicant’s solicitor is Colwell Wright.
Question II – Short answer questions
Difference between counsel and solicitor
A solicitor is a legal profession trained to offer all legal services save for appearing in court before a judicial officer to represent a client (Firth et.al., 2007). On the other hand, a counsel, also known as a barrister in some jurisdictions, handles only matters related to litigation such as appearing in court and making arguments and submissions (Gifford, 1997). The main distinction is thus a counsel can appear before a court while a solicitor cannot.
Difference between plaintiff and defendant
A plaintiff is the person who brings a claim or case to court, while the defendant is the person against whom the claim or case is made (Beatty and Samuelson, 2007). Generally, the plaintiff has the onus of moving the court. The defendant may however simply do nothing but the matter will still proceed.
Difference between Supreme Court and Federal Court
The Supreme Court is the highest court in a judicial structure, also referred to as the court of last resort (Segal et. al, 2005). On the other hand, a federal court is a court that deals with matters relating to the federal government, in a federal system of government (Shultz, 2005). The Supreme Court hears appeals relating to all matters while a federal court only deals with matters relating to the federal government.
Difference between case law and statute law
Difference between Justice of the Court (J) and Justice of Peace (JP)
A justice of the court is the conventional judge, a judicial officer with authority to generally preside over all matters in a court of law. A Justice of the Court is normally appointed from persons with legal training (Terrill, 2013). On the other hand, a Justice of Peace is an officer appointed to handle minor judicial functions such as hearing misdemeanor cases, issuing warrants, and witnessing documents. The criteria for appointment range from jurisdiction to jurisdiction. However, it is not a requirement that a Justice of Peace have legal training (Terrill, 2013). A Justice of Peace generally does not sit at court, unless appointed for such purpose as hearing misdemeanor cases.
The doctrine of precedent
The doctrine of precedent relates to the concept that a law or rule ascertained initially by a court in relation to a particular matter is used to base the later decisions on similar matters. In simple terms, the doctrine founds the concept that past decisions are binding, thus court decisions should be guided by past similar decisions (Harris, 2007). The doctrine serves the common law principle that similar cases should be decided similarly, to enhance predictability of outcomes.
The doctrine is given effect by the legal principle of stare decisis et non quieta movere, which requires judges to uphold, respect, and apply past decisions of courts of higher authority (Wasserstrom, 1961). Though past decisions are generally regarded as binding, a distinction is made between persuasive and authoritative precedents. Persuasive precedents are not strictly binding on the court, and act as a guide to making the decision. A court may thus exercise discretion and depart from such a decision if the circumstances of the case warrant the departure.
Authoritative precedents on the other hand bind the court, and must strictly be followed. There is no room for discretion and the judge is obliged to apply the decision, whether or not they approve it, or whether or not in their opinion the decision is wrong (Wasserstrom, 1961). Though the doctrine does not expressly state so, it is nevertheless argued that a court may only depart from a decision of a persuasive precedent only if it is palpably erroneous (Allen, 1964).
It is imperative to note that precedents are only binding to courts of inferior authority to the court that made the decision (Harris, 2007). If the court that made the decision is of concurrent jurisdiction with the court applying the decision, the precedent is persuasive and the court may either apply or depart from it. Additionally, precedents are not binding on the court that made the decision. For instance, a decision of the Supreme Court cannot be binding on later decisions to be made by the court. Such precedents however operate as persuasive on the court.
However, before a court departs from its own decision there must be good reasons. In Young v. Bristol Aeroplane Co. Ltd, the court identified the reasons for which such departure is allowed: if there are two conflicting decisions of the same court; if the decision is inconsistent to a decision by a higher court; and if the past decision was wrongly decided.
Burden and standard of proof in civil and criminal law matters
The term burden of proof relates to onus or duty of adducing evidence to establish a claim. The standard of proof relates to the level or degree of proof required to establish the claim. In civil matters, the plaintiff or claimant has the burden of proof. The standard of proof is on a preponderance of evidence or a balance of probabilities. In criminal matters on the other hand, the state through the prosecution has the burden of proof. The standard of proof required is proof beyond reasonable doubt.
‘Peppercorn’ consideration
Consideration is one of the key elements of a valid contract. The law does not however concern itself with the adequacy of the consideration (Frey and Frey, 2001); this is based on the concept of peppercorn consideration, which relates to a small or nominal consideration. Such small consideration is regarded as peppercorn and is sufficient consideration to make a valid contract (Beatty and Samuelson, 2007). The leading case on the issue is Chappell v. Nestle, where the court stated that a peppercorn is good consideration even if the promisee dislikes pepper and will discard the corn.
Terra nullius and the indigenous population in Australia
Terra nullius is a concept derived in Roman law and describes land that has not been occupied or been subject to sovereignty of any kind. The term translated from Latin means land belonging to no one. Belonging in this context means either occupation or exercising sovereignty over the land. The British utilized Terra nullius to render land occupied by the indigenous population as legally belonging to no one (Curthoys et.al, 2008). The argument was that even though the indigenous population occupied the land, they did not exercise sovereignty over the land. This was based on the fact that the British did not consider the then existing governance structure as a civilized political structure, capable of exercising sovereignty.
The British thus justified their occupation on this concept, and even restricted the use, sale, and transfer of land by the indigenous population, unless with the permission of the British. The application of this concept was changed in the case of Mabo v. Queensland (No.2). The High Court ruled that the concept was wrongly applied as common law recognizes native titles. The court reasoned that since the indigenous population had occupied and utilized the land, a native title was created. The land was thus ‘owned’ through native title, thus some sovereignty was exercised over it, rendering Terra nullius inapplicable (Curthoys et.al, 2008).
Question III – Problem Question
The scenario is based on the case of Carlill v. Carbolic Smoke Ball Co. [1893] 1 Q.B. 256. In the case, the Defendant Company had made an advertisement promising £ 100 to anyone who after the use of its carbolic smoke ball, caught influenza. To show its sincerity on the offer, the company deposited £ 1, 000, with a bank. The plaintiff caught influenza even after the use of the carbolic smoke ball. When she went to claim the £ 100 from the company, it declined arguing that the offer was a mere puff, a marketing gimmick, and that they did not intend to be bound by the offer. The plaintiff subsequently filed a suit, citing breach of contract.
How is an advertisement classified in contract law?
The manner in which advertisements are treated under contract law depend on the type of the advertisement. Advertisements relating to rewards for stolen or lost property, or for information relating to a crime are perpetually construed as offers (Treitel, 1999). This is based on the fact that no additional bargaining is anticipated to result from them. This also forms the basis for treating advertisements on unilateral contracts as offers. On the other hand, advertisements of bilateral contracts are treated as invitation to treat, not offers. This is because further bargaining is expected before an intention to be bound arises. Accordingly, sale advertisements, price lists, auction advertisements, tenders, and menus are treated as invitation to treat.
What type of contract is this?
This is a unilateral contract. A unilateral contract arises where the promisor promises to give something once a certain thing is done without the promisee reciprocating, in terms of promising to do the certain thing. All the promisee has to do is to do the required thing and the promisor will be bound. The promisee cannot be liable for breach should they not do the thing. The promisor is however bound to honour the promise once the thing required is performed. In this case, ‘Never Go Grey’ is the promisor while the users of the tablets, including Judy, constitute the promisee.
Explain how this type of contract differs from standard contracts
Standard form contracts where one party unilaterally dictates the terms. They are however bilateral contracts, and are not similar to unilateral contracts. Unilateral contracts differ from standard contracts in various ways. Firstly, standard contracts have definite parties, they may be two or three but at least the number is known. Unilateral contracts on the other hand do not have definite number of parties; they are in fact referred to as contracts with the whole world. Secondly, the promisee in a standard contract must communicate acceptance of the offer to the promisor, while in unilateral contract all the promisee has to do is to perform the required task, and a valid contract will be formed.
Is Judy entitled to the reward? Explain why or why not.
Judy is entitled to the $ 1, 000 reward because the advertisement by Never Go Grey can be construed as an offer in a unilateral contract. This is based on the fact that the statement contains a specific promise relating to verifiable facts. Had the statement been vague or containing indiscriminate praise, it would be regarded as a mere puff; this was the court’s reasoning in Carlill v. Carbolic Smoke Ball Co. (supra). In which case there would have been no intention on the part of Never Go Grey to be bound by such a statement.
Accordingly, the statement is a promise to pay $ 1, 000 to anyone who after using the tablets as directed their hair turns grey. Judy as the promisee only required to use the drug as directed and as she did so, Never Go Grey as the promisor is bound to fulfill the promise.
References
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Chapel v. Nestle (1960) AC 87
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Young v. Bristol Aeroplane Co. Ltd. [1944] 2 ALL ER 293
