Australian law

To range the extent, it is important to understand the source of law, the Australian legal system, the history of the Australia, the formation of the Australian legal system and the relationship between Australia and British law system. Back to history, source of law need refers to the historical development of a law or a legal system. 1 Now Australia Legal system is self-developing even include the Aboriginal Customary Law and no longer binding with English legal system. There are several segments for this case.

Before Colony settlement, Aboriginal Customary Law applies in all tribal throughout the continent; After Colony, 1788 to 1900, law of England were to apply all colony, there was no recognition of Aboriginal law; 1901 to 1986, Australia became to a member of Commonwealth, the appeal and ultimate court from the Australian courts was an England court; After 1987, Australia has got the independence of judicatory. Segment 1, Before Colony settlement

Aboriginal law and customs were part of an oral tradition, not written down, were passed on to each generation through stories, songs, rituals and ceremonies. Before Captain Arthur Phillip arrived at Sydney Cove 1778, there is no legal relationship between Australia and England. Segment 2, Colony Period, 1788~1900

Governor Phillip actually arrived on the Eastern coast in January 1788 and formally founded the colony of New South Wales on 26 January, he hoisted the Union Jack and declared Australian Continent to be British, which include all people living in Colony and All Aboriginal people became subjects of King George III of England and were bound by his law. There was no recognition of Aboriginal law, no negotiation with the Aboriginal people.

In fact, it was not until two centuries had passed that “English law” would give due expression and legal validity to Aboriginal customary law, beginning with the landmark native title High Court decision of 1992 in Mabo No.2.2 During this time, the legal system was a copy from England. In generally, the principles of setting new common laws are based on the England legal system. All case law was judged by the same, notwithstanding the condition of difference between these two different land, cultural and nationality. It could be named as "Reception of English law into Australia". In formal speaking, English statutes in existence at the time of settlement as appropriate to the circumstances of the colony. And English case-law (un-enacted law) in existence at time of settlement as appropriate to the circumstances of the colony.

Australia received English common law (including equity). Australian (colonial) courts were part of the English legal system and bound to follow decisions of superior English courts, English domestic legislation passed in England did not apply in the colony, But the English parliament could pass laws for any and all English colonies - which applied of paramount force. Even in those 112 years, Australian had developed the legal system, established of colonial courts & parliament, passed Australian Courts Act: s243. It said “all laws and statutes in force within the realm of England at the time of the passing of this Act [25 July 1828] ... shall be applied in the administration of justice”. Segment 3, National and Commonwealth Period, 1901 to 1986

The Federation of Australia was the process by which the six separate British self-governing colonies together formed one nation. All colonies collectively became states of the Commonwealth of Australia on 1 January 1901. Also the Constitution was approved in a series of referendums held over 1898–1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900, an Act of the Parliament of the United Kingdom. In effect, Australia has nine legal systems—the eight state and territory systems and one federal system. However, it is the state and territory criminal laws that mainly affect the day-to-day lives of most Australians. In this new entity,

Australian people still could appeal to England Court, and the British held part of the legislation authority for Australia. The acquisition of total legal independence was "evolutionary not revolutionary"4. The majority in Sue v Hill5declared it to be sometime between 1901 to 1986 England became a “foreign power”. It showed that, the origin legislation followed the English principles of hundreds of years’ accumulation. Or, sentences could be denied in the Privy Council of England. Therefore, Australian still maintains ties with England which prohibits it from absolute autonomy. Segment 4, Legislative Independence, after 1987

The historical turning point happened in 1986, in Australia Act 1986. It eliminated the possibilities for England to own the legislation authority in Australia; The High Court was also given the power to allow or reject appeals to the Privy Council resulting in a more liberated judiciary.6 It shows the British could still legislate for Australia, but only with “the request and consent” of the Australian Government.7 Australia was reluctant to give up ties to Britain.

But it desired to keep its link with Britain because of "defence, trad, investment and ethnic and cultural affinity" as well as the state's mistrust of the Federal Government.8 It has shown that since 1986 is yet to occur; vast milestones of independence have surely been made in a multiplicity of areas to the point where Australia exists functionally as Independent. Also talking about the independence of the legislation and judicial, the legal battle which Milirrpum v Nabalco Pty Ltd9 and Mabo v Queensland10 effect a lot.

It is the first litigation on native title in Australia. A doctrine of common law native title had no lands in a settled colony. In 1968, the Yolngu Clan who were the traditional owners of the Govepeninsula in Arnhem Land, were asked to leave their long-live lands. In 1971, the request had been denied. However in 1992, Mabo v Queensland case, the clan people led to the success of getting their lands back. Despite this, the most important meaning of it is the independence of Australian legal system gradually forbade the settlement laws and became an independent legal entity in the modern world. Now in Australian legal system, there are:

Aboriginal Customary Law — Recognition (ALRC DP 17) 1980; Aboriginal Customary Law — Marriage, Children and the Distribution of Property (ALRC DP 18) 1982; and Aboriginal Customary Law — Criminal Law, Evidence and Procedure (ALRC DP 20) 1984. In conclusion, It shows the Australian has a common law system based of England Legal system from the date of 1788, but since the judicial independent in1986, Australia has its own functionally generally legal independent and will develop on its own effect and condition.

Question 2

Discuss the importance of the case of Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 [15 marks] Word limit = 1000

Answering Discuss: Lord Denning’s judgment in Central London Property v High Trees11 is a case involving the Property law and Contract law which played a significant role in establishing the doctrine of promissory estoppel within the English courts, even more impact the doctrine of English world and also their Legal system.

Since 1937, there was a lease for the property between plaintiff (Central London Property Trust) and defendant (High Trees House) over 99 years. But during the World War II, tenants in London were scarce and ran to suburbs, thus resulting in the plaintiffs' occupancy rate, Central London Property Trust Ltd halving the original rent on the lease from £ 2,500 to £ 1,250 a year. The concurrence between two sides to reduce the rent did not have time limit. For the next five years to mid-1945, the defendants paid this reduced sum for their tendency. However circumstances (The war finished) soon became favored to the plaintiffs since most of their flats were now let and so it becoming more profitable for the rent to be raised back to the original £2 500 on the lease. The plaintiffs furthermore demanded rent for the last two quarters of 1945.

Traditionally estoppel only applies to representations fact- Jordan v Money (1845)12, the consideration would be difficult to identify, the promise may not have a cause of action. But Lord Denning J. was the presiding judge in the case and he made the ratio that the full rent was payable from the time that the flats became fully occupied in mid 1945, Central London would not have been able to get the full rent from 1940 onwards based on Hughes v Metropolitan Railway Co.13 This legal ruling had an incredible impact on the world because of it essentially created the doctrine of promissory estoppel. That equitable doctrine could hardly apply in the present case before, because without consideration.

But with regard to estoppel, the representation made in relation to the offer could trade as a representation. The law has not been standing still since Jordan v Money (1854) 5 H.L.C 185. After the case ruled, the promise in business behaving must be honored. The promises - promises intended to be binding, intended to be acted on, and in fact acted on. Jordan v Money (1854) 5 H.L.C 185 have been distinguished. The doctrine has been widely used in the cases related to business law and contract law in the English Legal System around the world.

It reflects the modern civil law for dynamic security as well as the pursuit of equal value."Although, trust principle can't like a specific rules, made up of the constitutive requirements and legal effect is very clear; however, trust principle also has relatively certain legal effect, and gives the corresponding calculation required legal effect of the core elements. The application of the principle of trust, performance based on certain facts, through the reasonable degree of trust, trust and responsible regularity degree of weighing, to determine the corresponding legal effect to elastic." The case is a milestone in legal world, Lord Denning said in his judgment, “not only includes the basic requirement of estoppel: promise, trust, damage, justice, and broke through the equitable estoppel is used only for a statement of the facts of barriers, to estoppel principles apply to the commitment to the future”,for the first time in the history of British promise of the first official gave no consideration to legally binding.

To sum up the scholars point of view, and the principle of trust protection structure for the private law: trust the facts (including the appearance of truth, the good faith and due to the trust for behavior), himself and, trust of rationality and legal effect, and one of the most important is the fact, I look like and the rationality of the other party trust. After this case established, there are Ricketts v. Scothorn, 14 (1968) regarding the property law, Wright v. Newman15, 266 Ga. 519, 467 S.E.2d 533 (1996) regarding family law; even in Amalgamated Investment and Property Co Ltd (in Liq) -v- Texas Commerce International Bank Ltd; CA [1982] 16it developed itself act as a sword and as a shield. The doctrine of promissory estoppel after High Trees to create a new inroad into the rule in Pinnel’s case17

At the same time, it is important to note that the principle of estoppel is civil and commercial law and the "fair" and "good faith" principle of corresponding, it is to enforce the power of the contract, to clear the duty and responsibility, to improve the connection between the law and reality, to implement the unified contract law rules of fairness, to Conducive to maintaining the social and public interests and to promote trade relations velocity, protect the safety of the transaction.

At later 20st Century, the Australian legal system has already firmly incorporated promissory estoppel within its’courts. It was held in Waltons Stores (Interstate) Ltd v Maher18 (1988) 164 CLR 387, 62 ALJ 110 that the appellant was estopped from denying that a promise was not legally binding because of the detriment on the respondent. Thus the judgment is found upon preventing detrimental reliance, so it cannot be applied to High Trees where the defendants did not act on their detriment, but simply paid the lower rent. With Australian courts recognized the full extent of promissory estoppel, it can be hoped that it soon will more powerful and help the people’s need. It shows the importance of the value of High Trees in global legal system.

Question 3

John was playing golf with three friends at his local golf course in a weekend golf competition. John hit a drive and proceeded along the fairway towards the green. John waited in the tree line to the side of the fairway whilst his friend Peter hit his golf ball. Peter’s accuracy was not good and Peter’s golf ball struck John on the head. John suffered injuries to his eye. Peter called out “watch out John” rather than the usual “fore” which is required as a warning.

John wants to bring legal proceedings against Peter and against the Golf Club.

The Club argues that it is not liable as there was an exclusion clause on the back of the scorecard that was handed to Allan (one of the other players in the group of four). The exclusion clause was written in small writing. The exclusion clause read as follows:

“The Club is not liable for any injury, death or any harm whatsoever suffered by participants in the competition.”

REQUIRED: Will John be successful if he brings legal proceedings against Peter and/or the Club. In your answer refer to relevant sections of the Civil Liability Act 2003 (Qld) and to any relevant case law. Refer also to the validity of the exclusion clause [25 marks] Word limit = 1500

Answering:

IRAC Analysis QUESTION:

Will John be successful if he brings legal proceedings against Peter and/or the Club? In your answer refer to relevant sections of the Civil Liability Act 2003 (Qld) and to any relevant case law. Refer also to the validity of the exclusion clause

ISSUE:

The issue here is whether person John could bring legal proceedings against Peter ,even prevail in court alleging by person that breaching the duty in General principles, Meaning of obvious risk, and No proactive duty to warn of obvious risk

Another issue here is whether the Club that the utility of the place that creates the risk of harm, the negligence of employee or other professional contractor who works at the course, the injured due to Golf Club's failure to enforce his or her own safety rules, and the effectiveness of the exclusion clause on the back of scorecard. This issue is important because if the Negligence, duty of care and the exclusion clause effective to relieve the liability of Golf Club in this case.

RULES/PRINCIPLE The relevant rule/ principle that we need to apply to resolve this issue is the duties owed to golfer, At Common Law, the golfer of sporting ground will generally owe a duty of care to all entrants, including player and spectators.19The case Ollier v Magnetic Island Country Club Incorporated & Anor20have already explain that. 1. By the Civil Liability Act, do all parties know the risk during the golf game? And all of them tried to avoid it? Each limb must be satisfied as a pre-requisite to the finding of a breach.21 Was it safe spot while John was standing and waiting in the tree line, was John bewaring of the situation of this position to against the risk.

2. Identification of the Risk due to Assumption of risk &Contributory Negligence between each two parties? Inherent Risks – the case Ollier v Magnetic Island [2003] QSC 263 at par 47 refer to here Obvious Risks – Section 13 of the civil liability act defines what is an Obvious risk? Will it apply here? 3. Does Peter have proactive duty owe to John during the golf game? And were both John and Peter understanding the risks involved in the game? 4. Other Principles with point to Golf Club

Subject to this case, is there any precaution or any other action has been taking by Club side to player in golf game? Or The burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid any similar case or risk for which the person may be responsible. Arguable that Peter excluded breach of duty to take care in torts and Golf Club has liability for breach of contract. The relevant rule/ principle that we need to apply to resolve this issue is the exclusion clause effective to relieve that the liability of Golf Club, 1. Which kind of document were the golfers signed or took for this golf game? Contractual Document or Non-Contractual Document

If it is Contractual Document, did the all four players sign it as fully understanding? Was there any possibility that the contract had been misrepresentation? Due to Previous dealing, does it only apply John or including the other three golfers? And the degree of Notice is very important for this case, we need check the Assumption of risk &Contributory Negligence applies here? 2. Had the exclusion clause become a term of the contract between golf club and player/golfer? To be a term of contract, the clause must

Have been intend by parties to be a term; and Actual or constructive notice provided to the golfers; and The timing of the explanation for this exclusion clause, have it been expressed and explained to player by Golf Club stuff? ;or When did the stuff explain and express this exclusion clause, before or after golfers entering the golf ground? 3. Was the language clear and unambiguous

If there was any ambiguity then such exclusion clauses are to be interpreted “Contra Profenterem”- read? 4. If the exclusion clause was a term of the contract, was it expressed in sufficiently wide language to exclude liability for the loss/damage? Arguable that clause can gain exclusion right to breach the contract and owe to duty of take care in torts to golfer/player.

APPLICATION Applying this rule(s) to the facts in this case we find ……….. 1. The warning from Peter call out “watch out” show Peter knew the risk if the ball hit person in golf game; the exclusion clause where put back of the scorecard could prove the Golf Club beware of the harm and risk happens in their golf playground. Also as common sense, John should know that when he waiting in the tree line to the side of fair way, it is clearly showed John was not intend to this accident. For example, in Thompson v McNeill, beside the result, but the court still believe the co-participant has a cause of action in negligence for the wrong hit. Continuing further with it analysis of risks that are expected and those that there could not arise from acts involving torts or reckless misconduct between participants in a sport.22 2.

Back to Civil Liability Act 2003, being struck by a golf ball on a golf course has been found to be reasonably foreseeable. Generally, sporting rules will not have determinative value, though they may. In the case of golf players, it has been held being struck by a golf ball during a game, is not a risk inherent in a golf game, refer to section 16 of this Act23. If it is not a inherent risk in this game, it only can be defined as “Obvious Risk”; 3. Under the Act Section 15, a defendant does not owe a duty to a plaintiff to warn of obvious risk to the plaintiff24; It is clearly said that there is no Proactive duty owe to John.

By thus usually accompanied by conscious indifference to the consequences. There is no negligence to Peter. 4. Subject to Section 10 of Act, "the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible" and "the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done" It shows the Golf Club Could be trade as other Principles in this case.

Applying this rule(s) to the facts in this case we find ……….. 1. In Fact, there is an exclusion clause on the back of scorecard that was handed to Allen, neither John nor Peter. We need check the contract between Golf and Player, or the scorecard could trade as a contract between these two parties. 2. The exclusion clause was put on the back, is it a term of contract, all the players understood that?

Or the Golf Club owe to player an expression and explanation when they handed the scorecard. We need a testimony for this point. 3. Here the scorecard referred to “The Club is not liable for any injury, death or any harm whatsoever suffered by participants in competition”, do all the foursome players clearly understand it? Or the scorecard is not a contract document and put it on the backside to make an exclusion of Club’s liability and negligence to breach the duty of care in torts then it is not wide enough to cover damages in law of contract. 4. After concluded [@3 above] that the exclusion clause should be interpreted to apply negligence to breach the duty of care.

CONCLUSION. For the reasons outlined above, my advice is …….. Though the risk is significant, it was not sufficiently foreseeable, also with other golf cases25 and Since they have been collected elsewhere, nothing more need be said.26 But no reasonable actions could be done at that moment. And the most important is, the burden of set such a new change to all sporting27and the common law and consequently change the facilities into safer or changing rules is too heavy. There was no breaching duty of care for Peter. But for the liability of Clubs, due to their evidence is not sufficient and clear. Even they have an exclusion clause putting in the scorecard, the liability of the course owner or golfer to golfers and spectators who are actually on the course, general negligence principles should apply.28