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Question 1
Compare and contrast the adversarial system and the inquisitorial systems of court hearings.
Answer:
The adversarial system and the inquisitorial systems of court hearings
The adversarial legal system is the one where the two parties of the case is represented by respective advocates and an impartial person decides on the matter, commonly a judge or a jury decides and pass the decision, based on the facts of the case, on the other hand, inquisitorial system is that system, where the Court in its own capacity investigates the matter in front of it and hence is not a referee between prosecution and defence as in the adversarial system. Australia follows the adversarial legal system to arrive at the judgement.
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Question 2
Compare and contrast criminal and civil trials setting out at least four differences.
Answer:
Criminal and civil trials
Criminal Trial
Civil Trial
Criminal trial is governed by Criminal Law, where the commission of crime attracts fine and punishment.
Civil Trial is based on the Civil Law, where the disputes between two parties are taken into consideration.
The result of criminal trial is either conviction which attract penalty in the form of fine and imprisonment, and acquittal of the accused or the guilty party, if there is no evidence to convict.
The result of the civil trial is in compensation, that is the damages paid by the defendant for the commission of the civil wrong or the infringement of the private rights
The judgement is In Rem, i.e. the judgement is applicable for the whole world and is not restricted only to the parties involved.
The judgement is In Personam, and is applicable only to the parties.
The victim of a crime is not the party to the case, and it is always the State versus the wrong- doer.
The parties involved are the one who is having disputes, and are referred as the plaintiff and the defendant.
Question 3
You are to accept the two paragraphs below are correct.
Consider Hedley Byrne v Heller & Partners [1964] AC 465 where an advertising agency asked its merchant bankers to do a credit report on a company the advertising agency was entering into substantial contracts with. The Merchant Bank came back with a favourable written report about the company, but added “without responsibility of this bank or its officials.” The advertising agency in reliance on the bank’s written report dealt with the company which did not pay it. The report was inaccurate as the company was not financially strong. The advertising agency used the merchant bank for damages based on negligent misstatement (also known as negligent advice).
The House of Lords held where someone with special knowledge or skill (here – the merchant bank) undertakes to apply that skill for the assistance of another (the advertising agency) who reasonably relies on that skill and suffers a financial loss it may be liable in negligence. However, the merchant bank was not liable to the advertising agency here because there was an express written disclaimer at the end of the bank’s report to the advertising agency that the bank would not be responsible for any loss if the report was inaccurate.
Required:
(a) Explain the meaning of ratio decidendi.
(b) What was the ratio decidendi of the House of Lords?
(c) Explain the meaning of obiter dictum.
(d) What was the obiter dictum from the case?
(e) Explain how you reached your views on the ratio and obiter.
(f) Explain the following aspect of the citation: [1964] AC 465
Answer:
(a)Ratio decidendi
The ratio decidendi is the legal rule or the principle, based on which the judgement is reached by the Court, depending on the consistent facts of the case.
(b)Ratio decidendi by House of Lords
The special knowledge or skill by merchant bank when relied based on that skill and subsequently suffers a financial loss then the person having special knowledge will be liable in negligence. (Hedley Byrne v Heller & Partners , 1964)
(c)Obiter dictum
There are times when the Judges refer to the precedents, in the passing of the verdict, and in so doing they make certain statements which are not crucial and neither have any meaningful reference or relation to the present facts of the case, are Obiter Dictum.
(d)Obiter dictum from the case
The House of Lords, said that “However, the merchant bank was not liable to the advertising agency here because there was an express written disclaimer at the end of the bank’s report to the advertising agency that the bank would not be responsible for any loss if the report was inaccurate”, is the obiter dictum, since it is only persuasive and not binding on the forthcoming decisions.
(e)Explanation about the ratio and obiter
So, ratio decidendi is the rule of law, whereas the obiter dictum is that aspect of judge’s verdict which is not in parity with the facts of the case and is persuasive, so ratio becomes the binding one and the obiter is not binding.
(f)The citation [1964] AC 465
1964 is the year of the judgement, AC is the Law Report Series for the Appeal Cases, and 465 is the number to denote 465th case of 1964, in House of Lords.
Question 4
The legal research, which follows, is correct:
(a) In ABC v Lenah Game Meats [2001] HCA 63, by way of obiter dictum, the High Court of Australia determined neither policy nor precedent would prevent the incorporation of a new tort into Australian law of invasion of privacy.
(b) In Jane Doe v Australian Broadcasting Commission [2007] VCC 281
Facts: “Jane Doe” was the victim of a rape by her ex-husband. After he was found guilty, the ABC broadcast over national radio in 3 news bulletins her full name which was in breach of the Judicial Proceedings Report Act, 1958 s.4(1A).
Legal proceedings: Jane Doe issued legal proceedings in the County Court at Melbourne and sought damages against the ABC for her psychiatric injuries as a result of the radio broadcasts.
Cause of action: Jane Doe sued for the invasion of privacy in a civil action in tort and quoted the HCA obiter in the Lenah Games Meat case.
Held: Invasion of privacy -The wrong that was done here was the publication of personal information, in circumstances where there was no public interest in publishing it, and where there was a prohibition on its publication. In publishing the information, the defendant failed to exercise the care which could be reasonably required of a national broadcaster to protect the plaintiff’s privacy and comply with the prohibition on publication imposed by s.4(1A). I find therefore the defendant breached the plaintiff’s privacy by the unjustified publication of personal information, and is liable in damages as a result.
[c] In Giller v Procepets [2008] VSCA 236
Facts: After the breakdown of marriage the husband distributed to his wife’s family and others a video of himself and his wife engaged in sexual activities. The wife was embarrassed and mentally distressed, but there was no physical harm and no recognized psychiatric injury.
Issue before Victorian Court of Appeal: a new tort of invasion of privacy versus follow English cases which extended the old doctrine breach of confidence in equity both of
which were discussed in the High Court of Australia in the Lenah Game Meats case
{Case (a) above}.
Held: a breach of confidence in equity in that "first, the information is confidential, secondly, that it was originally imparted in circumstances importing an obligation of
confidence, and thirdly, that there has been, or is threatened, an unauthorised use of the information to the detriment of the party communicating it." Breach of confidence has now broadened beyond its modern role in the protection of trade secrets to include what looks very much like a de facto equitable doctrine of breach of privacy. All necessary remedies from injunction to compensation damages are available as equitable remedies, including compensation for mere mental distress and embarrassment, aggravated damages and perhaps even exemplary damages.
You are a Supreme Court of Victoria Judge and have just finished hearing the evidence in the case before you of Wilson v Ferguson and you find as follows:
Facts: The parties were formerly in a romantic relationship – the plaintiff, M/s Wilson, alleged the defendant, Mr Ferguson, posted photographs and a video on Facebook depicting explicit images of her as result of her decision to terminate their relationship. I accept the evidence of the plaintiff, M/s Wilson, and Mr Ferguson did not contest any
aspect of her evidence. The plaintiff claimed an injunction restraining the defendant from further publication of photographs and videos and damages.
Required:
Please apply the three decided cases (a), (b) and [c] above, as researched, to the facts below and set out your reasons for your decision. In your reasons, explain which case or cases you consider binding and /or persuasive precedent and try to apply any binding precedent to formulate a ratio decidendi. Further state whether you would order the injunction sought and damages.
Answer:
In the present facts of the case, M/s Wilson, sought injunction against Mr. Ferguson, and also the damages for posting photographs and a video on Facebook of explicit images of M/s Wilson. During evidence, Mr. Ferguson, did not contest any evidence of M/s Wilson. So, applying the ratio of the binding precedents of (Jane Doe v Australian Broadcasting Commission , 2007) and also (Giller v Procepets , 2008), it can be concluded that Mr. Ferguson is in breach of confidence and also the fact that he intruded in to the privacy of M/s Wilson, and hence has also breached the equitable doctrine of privacy, and so injunction can be granted as well as the damages, after calculating against the loss so suffered by M/s Wilson.
Question 5
Bronwyn is 40 and an experienced licensed conveyancing clerk who wants to start her own conveyancing business. Her partner, Roger, is a licensed plumber who works for a large construction company and earns $100,000 gross per annum. Their home at Greensborough is in joint names. Also, there is a country retreat at Walhalla in Bronwyn’s name only. Give consideration to the various business structures that are available to Bronwyn to run her business.
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Provide a general letter of advice to Bronwyn on the appropriate business structure for her new conveyancing business.
Answer:
Letter of Advice to Bronwyn
Dear Bronwyn,
Thank you for contacting our law firm for appropriate business structure for your new conveyancing business.
In Australia, the business structures so used are:
Sole Proprietorship, where you will be personally liable and individually responsible for all the legal aspects of the business.
2ndly, Company is a business structure, which is in itself a legal entity, and can sue and sued under its own name.
3rdly Partnership, is a business structure, where there will two or more people, who will be jointly conducting the business. A partnership is of two types, general and the limited ones.
Based on your current position, being an experienced licensed conveyancing clerk, the plausible solution is to start a sole proprietorship, and based on the situation, you can always involve your husband, if he is willing to be the partner, if you want to change your structure to Partnership and also the aspect of incorporating a company can be thought through.
Please feel free to consult further, if the need be.
Thanks, and Regards,
Mr. David Bone
Solicitor,
Legal Firm,
NSW
(Business structure, 2018).
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