The rule of recognition in Nepal and Australia

Every Legal System has its roots in the three rules laid down by H.L.A. Hart, namely, 1) the rule of recognition, 2) the rule of change and 3) the rule of adjudication. These three rules have been unfolded by Hart in his famous work Concept of Law. It forms the central part of Hart’s theory of legal positivism. Every legal system follows these rules, in one form or the other, to seek validation. The main objective of this paper is to analyse the legal system of Nepal under the light of the rule of recognition, rule of change and rule of adjudication and present a comparison between the legal system of Nepal with the legal system of Australia.

The rule of recognition is a requirement that a primary rule must satisfy to obtain the status of law within a particular legal system. It is one of the rules of legal positivism, which occupies a major portion of the theory. Different countries have different legal structure and with that a different technique of rule of recognition. The Legal system of Nepal has evolved from the religious texts of Hinduism. In its present form, it follows the Anglo-American legal model. In Nepal, the Constitution of Nepal is the supreme legal dictate of the land. Any law, which is violative of the Constitution loses its legal validity in Nepal. Other than the Constitution, Nepal has three sets of Law, the Parliamentary Laws, the Provincial Laws and the Local Laws. The Acts of the Parliament has a superior position in Nepal, all other laws must be in conformity with the same. Any inconsistency would ensure the prevalence of the Acts of Parliament over any other Law. The other legal rules include delegated legislations, customs, precedents, treaties and conventions, which are implemented to aid the legal structure. However, in Australia, there exists a federal legal framework. The Constitution of Australia has the highest legal standing, and all other laws of the land seeks validation from the same. Any law of the land inconsistent with the Constitution would be rendered void. The Australian legal system has two sets of laws, one being the federal laws the other being state made laws. The federal laws implies the laws enacted by the federal government whereas the state laws are the laws enacted by the state government. Whenever an anomaly arises amongst these laws, the federal laws will always override the state made laws. Apart from these, Australia also recognises common law, precedents and customs as law. All the laws in Australia has unfolded from the common law system. The precedents of higher courts gains the authority of law and are binding on the subordinate courts.

Another important rule envisaged in the theory of legal positivism is the rule of change. Every legal system has undergone a lot of developments and improvisations with time. Owing to the changing needs of the society with passing years, the laws are also subjected to change. This refers to the rule of change. The changes are carried out by the amendments, introduction or deletion of the existing laws. In Nepal, the main legislative body is the Parliament. It consists of two houses, a lower house and an upper house. Laws in Nepal are, generally, drafted by the Government, but in certain cases, an MLA may also draft a law and thereafter seek the approval of the committee concerned for the same. The probability of the recommendations of the MLA to become law is less compared to the recommendations of the Government.  In both the cases, laws must be passed by the assent of the Parliament. The amendments are carried out by the Parliament, through the presentation and discussion of the proposed amendments in both the houses of the Parliament. However, in the Australian legal system, laws are introduced, amended or repealed by the passing of Acts of Parliaments. In case of any disagreement between the federal laws and state laws, the state laws must be amended to remove that cause of disagreement. Such an amendment would be accompanied by the passing of an Act by the state government.

The rule of change in Nepal and Australia

Another rule of legal positivism, which deserves mention is the rule of adjudication. The rule of adjudication refers to the remedy that the society would come up with, whenever a violation of rule of law crops up. The main area of emphasis of this rule is the courts and the instruments of law enforcement. The Judiciary of Nepal is based on  a three strata of courts. At the peak of its judicial system, Nepal has its Supreme Court. Under the Supreme Court, there are the courts of appeal and the district courts. The verdicts of the courts of appeal and the district courts can be questioned in the Supreme Court but no court has the legal authority to question the decision of the Supreme Court. Australia has several strata of courts. At the topmost layer of the hierarchy of courts lies the Federal High Court. The Federal High court has the utmost authority. The verdicts of the Federal High Court are binding in all the other courts of Australia and the same cannot be questioned in any other courts. All the States of Australia has their own State Supreme Courts. The State Supreme Courts are subordinate to the Federal High Courts. The decisions of the State Supreme Courts could be challenged through an appeal in the Federal High Court. However, the decisions of the State Supreme Courts have a binding authority over any other Courts in that particular state.

In both the countries, the requirements of the three rules, namely, the rules of recognition, the rules of change and the rules of adjudication are followed. However, the structure of the legal system is dissimilar in both the countries. Moreover, the legal system of Australia has blossomed from the common law, but the legal system of Nepal has its foundation in the religious texts of Hinduism. In both the countries, a federal form of government exists.

Issue

The question involved in this present case is whether Sandra has any cause of action to claim damages against the jjNet, the internet Service provider. 

Rule

The Australian Consumer Law defines the term consumer in section 3. The person, who has purchased is termed as a consumer. The item so bought must be used for household or domestic purpose. The consideration paid must be anything less than or equal to $40,000 to make that purchase. If the person, buying a product, buys it for resale or re-supply, that person would not be qualified as a consumer. That will render the person to be a trader and not a consumer.

Section 18 of the Australian Consumer Law puts a restriction on the supplier, seller or manufacturer of a commodity to indulge in any endeavours of a deceiving or misleading nature or any act, which is likely to yield a deceiving or misleading apprehension in the minds of the consumers, while supplying an item to the consumer. For the purpose of this section, consumer would mean the same as is defined under section 3.

In the case of ACCC v TPG Internet Pty Ltd., the High Court allowed the contention of the ACCC that the advertisement of the TPG was deceiving and misleading applying section 18 of the Australian Consumer Law.

The rule of adjudication in Nepal and Australia

Section 54(1) of the Australian Consumer Law mentions the expectation regarding the quality of the product that the supplier must ensure to the consumer. According to this section, the goods so supplied must be of an acceptable quality. Acceptable quality implies compliance with the standards of the goods of similar nature. Section 54(2) prescribes the supplier to supply goods, which are fit for the use of the consumer. In this case, fitness implies the standard norms, which goods of similar nature would possess. The finishing and the appearance of the product must comply with the standards. The supplier should refrain from supplying any defective items to the consumer. The items supplied should not possess any hazards and must have an expected amount of durability. There are certain factors that are needed to be explored while complying with the requirements of section 54(2). Those are provided for in the section 54(3). Those factors are price, nature, what has been displayed in the package, representations made by the supplier and other factors, which are relevant. Before analysing the case under section 54(2), the same must be examined in tune with the considerations mentioned in section 54(3). According to section 54(4), even if the goods sold are not of acceptable quality, but the consumer has the knowledge of the same before buying the product and he did not made any objections regarding that during the purchase, the product is assumed to be of acceptable quality for the purpose of this Act. It has been provided in section 54(5) that whenever, an item is displayed by the seller, for sale and the same is unfit to use for a particular buyer, the seller should disclose the fact in the display and should be transparent about that disclosure. Section 54(6) does not render goods to be of unacceptable quality, if the goods are damaged or deteriorated due to the fault of the buyer or if the goods are subjected to abnormal use by the buyer and the supplier cannot be blamed for the same. According to section 54(7), if the consumer had the opportunity to examine the goods before buying them and such examination would readily reveal the defect, if any, then the goods are to be regarded as to have possessed the acceptable quality.

In the case of ACCC v Valve Corporation (No 3) [2016] FCA 106, the court held the Valve Corporation liable for breaching the laws of consumer guarantee.

Application

In the instant case, the package of phone/ internet has been purchased by Sandra from the internet service provider, jjNet. This would bring her under the purview of section 3 as a consumer. Moreover, Sandra did not have the intention of buying the product for re-sale or re-supply and the price she pain is less than equal to $40,000.

The advertisement made by jjNet in the online brochure indicating a promise of providing an internet speed of up to 100 Megabits per second does not imply to be misleading or deceptive. However, those words have the considerable probability of being conceived as a statement of misleading or deceptive nature. The same can be illustrated with the case of ACCC v TPG Internet Pty Ltd. as the facts of the case leads to misleading and deceptive advertising and a similar contention was applied by the High Court.

Again it may be stated that as the phone and the modem were bought with the package of internet, a guarantee will be accrued to the same to bring it under the law of guarantee. The phone does not possess the required standards of appearance and finishing when Sandra received it. This would not be regarded to be in conformity with the provisions of section 54(1). Sandra found the keys of the phone to be troublesome while typing with the same. This would imply the phone to be unfit for the purpose of the use it was supposed to serve.

The battery of the phone has a very little life, which renders the phone to be of unacceptable quality, as the quality of the battery would add up to the quality of the phone. This would amount to be violative of section 54(2). These instances attracts the provisions of section 54. The seller refused to replace the phone which again is a violation of the guarantee laws which in turn is a violation of the consumer laws of Australia. The same can be illustrated with the case of ACCC v Valve Corporation (No 3) [2016] FCA 106.