Again These Are Questions from Past Exam Papers. We Will Be Trying to Pick the Issues

TUTORIAL 11 Answer guide

Again these are questions from past exam papers. We will be trying to ‘pick the issues’ raised in each question rather than giving fully worked out answers.

Question 1.

Candidates must answer BOTH parts of this question. Both parts of this question are of equal value.

Look carefully at the instructions – this is a two part question, with two equal halves, so allocate your time accordingly. However, in this particular question, the second part is also divided in two. Remember each part of B is only worth half of A. You need to do both parts, but allocate your time according to the marks available.

A. It can be argued that courts are provided by the state to fulfil the community expectation that justice will be available to all on equal terms and that those terms will be consistent, predictable and fair.

To what extent is this true of our "traditional" courts? Has the introduction of alternative dispute resolution methods in some of our traditional courts and the establishment of specialised courts and tribunals made it more likely that this argument is correct? Illustrate your answer by reference to the courts studied in the Legal Institutions course.

Part A asks you to address two issues:

1. Is it true that “traditional” courts provide consistent, predictable and fair outcomes and make justice equally available to all? To answer this you would need to consider the doctrine of precedent, the operation of an adversarial court and questions of cost of justice and resulting limitations on access. 2. Has the introduction of alternative dispute resolution methods (such as mediation and conciliation) – available both within the traditional system and in specialised courts and tribunals – addressed any of the problems with access to justice which you may have highlighted in (1) above? And is the justice delivered by these new methods consistent, predictable and fair? Consider again the question of precedent.

You need to compare and contrast the traditional adversarial model and the alternative dispute resolution model. This is not just a theoretical discussion, but needs to be grounded in particular examples of Courts you have studied.

B. (1) Responsible government and representative government were achieved in New South Wales in 1855 and in the Commonwealth in 1901.

Is this correct? What is meant by responsible government? Give examples of the way in which responsible government operates to provide safeguards against abuse of governmental power. What is meant by representative government? Does the concept of representative government derive from English Constitutional history?

Remember, that this is only half of question B and is only worth half the marks of A.

You need to address three issues in this question: 1. Correctness of dates given. Always look at the clues within the question. It is very rare for an exam question to ask you “is this correct” and for the answer to be yes. You need to think about the detail of the dates – and if you don’t know the detail consider doing another question. NSW – partial representative government began in 1842 (full Constitution in 1855) though it is arguable that full representative government was not achieved until the Legislative Council reforms of 1978; Commonwealth – consider whether fully representative government was achieved if franchise was not extended to all at Federation (e.g. aborigines) 2. What is responsible government, and what safeguards does the doctrine provide against abuse of power. (Consider s 61 of the Constitution; all Ministers are members of Parliament and thus are subject to its control; and any powers to be exercised by the Governor-General or Governor-General-in-Council are to be exercised subject to Ministerial advice.) 3. What is representative government and does it derive from English constitutional history? (Consider the structure of Federal Parliament; Magna Carta and developments from there.)

Generally, remember in this question that each part is worth about one third of one quarter of a question and gauge the amount of detail required accordingly.

(2)The High Court’s reading of the very few express guarantees of freedom in the Commonwealth Constitution (constitutional guarantees) makes the Constitution a document which extends beyond the written word.

Critically assess this statement with reference to TWO of the constitutional guarantees studied in the Legal Institutions course. Refer to authorities, where appropriate.

This question requires you to look at the way in which the High Court has interpreted “beyond the written word” of the Constitution, two different constitutional guarantees. You will need to refer to cases for this question – not just the sections of the Constitution – and if you are not sure you know the relevant cases you should consider doing another question.

You will need to consider two of: s.80 – Trial by Jury (Consider the words of the section – only refers to indictable offences, and Archdall’s case.) s.116- No established religion; freedom to practice religion (Consider whether ‘religion’ is a federal power or a residual State power; consider Jehovah’s Witnesses case and Krygier v Williams; if a law is imposing a civic duty – such as national service – will this be a law which infringes religious freedom?) s.117-Equality of residents in different States (Consider Davies and Jones v WA – technical difference between domicile and residence; Lee Fay v Vincent – past residence is not enough)

You could also consider s 92 ( Cole v Whitfield) and s 109.

Question 2 “In its legal institutions, as in other aspects of its national life, Australia bears indelibly the marks of its birth. The legal and political institutions of Australia find their roots, not in the traditions of its native inhabitants, but in the traditions of a colonial power which imported its understanding of law and social organisation with the landing of the first white settlers in 1788."

(Parkinson, Tradition and Change in Australian Law)

Discuss.

“Discuss” does not mean “agree”. It means critically assess the statement. So, you may disagree with Parkinson, or agree in part/disagree in part or agree with the whole statement, provided you have reasons (which you need to provide) to back up your opinion. To answer this question you will need to discuss the development of law in Australia and look at the way in which the English common law was imported/received and the application of Imperial law (by paramount force). Since the question raises parliamentary as well as legal institutions you should also look at the nature of Australian parliamentary democracy and the origin of our parliamentary institutions such as responsible government, a bicameral legislature and the Westminster system. This question is not asking you to discuss Mabo or issues surrounding legal recognition of aborigines or aboriginal land rights. Don’t get sidetracked by the reference to customary law. It is asking you to look at the way in which the law (and Parliamentary systems) have developed in Australia from a British colonial heritage and not from an aboriginal/tribal perspective. Look at the word “indelibly”. Will our legal and parliamentary systems always be stamped with a British character?(This would be the appropriate time to discuss Mabo if you want.) Consider the changes which have been made (e.g Australia Act) and which may be made (eg republic) and discuss whether these changes represent the natural growth of a country born out of British colonisation (as Parkinson argues) or a complete re- imagining of existing institutions.

Question 3

Alvin is a seller of engine-powered boats. Barry approached Alvin with a view to buying a ‘Hawke Class III, XPC’ power boat. The negotiations were entirely concerned with the price. On 2 April 2003, Alvin wrote a letter offering to sell such a boat to Barry for $75,000 and attaching a detailed brochure from the boat manufacturer setting out the boat’s specifications and performance capabilities. The brochure specifically stated that the boat was not suitable for water sports such a power-boat racing and water-skiing.

Note the dates in this question.You may want to draw a time line. What is the status of the letter from Alvin? If an offer, consider whether the information in the brochure is part of the offer.

On 4 April 2003 Barry, who did not read the brochure, telephoned Alvin to seek information as to whether the boat’s engine was powerful enough to enable the boat to be used for water-skiing. Alvin assured him that it could.

Does this information form part of the offer? Is it a term or a representation? Note that it conflicts with the information in the brochure.

On 5 April 2003 Barry posted a letter to Alvin accepting the offer set out in Alvin’s letter of 2 April 2003.

Is this an acceptance? Is so, what is the date of the acceptance, i.e when is the contract formed? What are the contract’s terms?

On 6 April 2003 Alvin, who had just realised that the boat’s engine was not powerful enough to use for water-skiing telephoned Barry and told him that the offer in his letter of 2 April 2003 was no longer open to be accepted.

What is the effect of this call from Barry? Does it revoke the offer? Does it change the terms of the contract?

Barry told Alvin that he had accepted the offer the day before and that he wanted the boat, even if it could not be used for water-skiing, but that he would sue Alvin for damages for breach of contract in relation to the boat not being able to be used for that purpose. You are asked to advise on the following: (i) Is there a contract for the sale of the boat to Barry? What are the requirements for a contract? Is there a valid offer, acceptance, and consideration. You need to show each of these for there to be a contract, but the focus of the question is on the acceptance and the postal acceptance rule. What is the effect of Alvin’s phone call of 6 April 2003, if any? Be careful to state the rules you rely on and where they come from. If you are relying on an exception to a rule eg, PAR – quote the rule and then the exception and relevant cases.

(ii) Would Alvin be liable to Barry for damages for breach of contract in relation to the boat not being able to be used for water-skiing?

Consider the contractual status of the brochure and of the statement made by Alvin on 4 April 2003. Is the information in the brochure a term of the contract, if so, has it been altered by Alvin’s subsequent statement? Look at the parol evidence rule. Is there another way that the statement of Alvin’s could be binding? Consider whether there is a collateral contract. Look at the requirements for a collateral contract and then consider whether it is inconsistent with a term of the principle contract. (Do the facts of this question remind you of the facts of a collateral contract case? Perhaps JJ Savage v Blakeney? Whenever the facts of a question are similar to the facts of a case it is a good guide to the relevant legal issues you need to cover.)

(iii)Would Alvin have any remedy based upon principles of equity in relation to the boat not being able to be used for water-skiing? Consider whether this should be Barry rather than Alvin. Note that the question is no longer looking for legal remedies but for the equitable remedies. This should alert you to a possible equitable estoppel issue. Consider each of the elements of equitable estoppel in the Waltons v Maher case and decide whether this remedy is available.

Note: the question was raised in tutorials whether the equitable remedy in question could have been specific performance instead of equitable estoppel. Consider the following:

 Questions which raise issues of collateral contract also commonly raise issues of equitable estoppel because they are closely related, and both require a promise which was intended to be relied on. Often the only difference between them is the timing of the promise.  Barry specifically asks Alvin for a Hawke Class III XPC power boat. As it transpires he would also like this boat to be usable for water skiing. What Barry is getting is a Hawke Class III XPC power boat. He is getting specifically what he asked for, although it does not have one of the qualities he would have liked. (iv) Would your advice in (i) above be different if Alvin’s letter of 2 April 2003 also stated that Barry had to notify Alvin before 10 April 2003 of his intentions with respect to the offer?

Be careful to sort out the timing of each communication. The letter of offer is now changed. What effect does this change have? Does the postal acceptance rule still apply? If not, is the purported acceptance of 5 April 2003 still an acceptance? What is the effect of the phone call of 6 April, now?