Part A: The Constitution of a Tribe and Rules for Protecting Members from Acts of Violence

In this part the constitutional framework of the tribes has been described. The rules of the new constitution are such that it has been protecting the tribes from violence and discrimination. The rules have been designed in such a way which would provide protection to the tribal communities as a whole. It is worthwhile to refer here that, the tribal communities have distinct cultural background and traditions of their own. These tribal communities are very much emotionally attached to their lands and natural resources. Therefore, the rules depicted in the constitution are regarding the protection of the interests of the tribes including their rights on lands and natural resources. In this regard, new rules have been formulated in order to develop new schemes for addressing the issues regarding violence and discrimination. The day to day experiences of oppression, assault and debridement of land rights have urged them to formulate their own constitution. The rules were developed in order to stop the age old practice of oppression and violence.  

It is worth noting that, the constitution has already mentioned by way of wordings that the tribes are at the authority to apply relevant laws for the purpose of protecting their rights and interests. The incorporation regarding the change of rules has been emphasized by the Hart’s legal principles. The constitution has provided appropriate information regarding the fact that, if any person has committed any criminal offence or was responsible in carrying out criminal activities shall be prosecuted in courts by incorporating the rules of recognition and adjudication. It is noteworthy to mention here that, the Hart’s legal system is a Western legal theory and therefore in order to determine the rules regarding the protection of violence difficulties may arise. However, the Hart’s legal system did not emphasize much upon the promotion of deterrence within the societal framework.

From the very beginning, the penalties regarding criminal activities are governed by the provisions of the Crimes Act 1961. Under the provisions of the Crimes Act 1961, a prosecutor generally represents criminal prosecution against an individual charged with a criminal offence. However, an individual involved in grave offences shall be prosecuted, imprisoned, fined or both. In this regard, the structure of the legal system of Australia in regard to the prosecution of criminal offences can be compared to that of the United Kingdom.

Various penalties are imposed upon the individuals involved with the commission of a criminal offence in UK. However, in such process, if an individual is found guilty of the concerned criminal offence then, the Courts are authorized to intervene and impose appropriate penalties on them. Certain restrictions are there as well. The Criminal Justice Act 2003 has proposed certain provisions for the purpose of imposing penalties upon the criminal offenders in order to reduce or end the ongoing criminal activities. According to the provisions of Section 142 of the Criminal Justice Act 2003, certain penalties were implemented for the purpose of initiating various ways of sentencing the offenders. The criminal offences which are not of grave nature shall be penalized with the imposition of a fine not more than £5,000. If the offender proves to be a major threat for the society and the community as a whole then he shall be fined and imprisoned.

Part B: Criminal Offences and Penalties in a Foreign Legal System Compared to Australian Courts

Three distinctive secondary rules are associated with the application of the Hart’s Legal System. These rules can be emphasized as rules of change, rules of recognition and rulers of adjudication. Therefore, mention can be made regarding the fact that the rules mentioned above should be strictly followed in order to impose any penalties for criminal offence.

The issue in this case is concerned with the underlying obligations regarding the payment of rent from the lessee to the lessor. The issue is also associated with the fact that whether the obligation ceases to exist if even the premises are sublet.

The essentials contained in the term of lease and the 1999 deed were considered to be of utmost significance upon which the NSW Court effectively relied upon in order to reach at a relevant conclusion. The terms depicted in the lease document and the 1999 deed clearly mentioned the fact that, rent has to be paid to the landlord. In this regard, it is noteworthy to mention here that, the provisions of the 1993 deed have efficiently amended the obligations under the lease deed which was limited to a prescribed time period. In this case, new obligations did not arise with the replacement of the previous obligations in accordance to the lease agreement for the purpose of paying the amount of rent to the landlord. The Court observed that, there was breach of obligations as the sub-tenant failed to pay the remaining part of the rent to the landlord that in fact breached the provisions of the lease agreement and the 1993 deed.

In relation to the abovementioned rule, the appeal was allowed by the High Court and Gumland was awarded damages including arrears and bargaining damages. In the perspective of the Court, the performance of the deed was not consistent with that of the lease. The Court applied the essential term of the lease on the part of the tenant and held that he was liable for the payment of rent in full within a prescribed time period of seven days from the final date. In this regard, the High Court referred the essential term of the lease due to the reason that, the amount and the payment of rent was an important term of the 1993 lease.

In this context, the Court applied the general principles of contract and held that the claimant is at the authority to terminate the contract by recovering the losses in regard bargain damages. The concept of repudiation of fundamental breach of condition arises in this regard. With the expiration of sub-lease, the rent for the sub-let premises was not paid by the lessee because in his opinion he was not obliged to pay rent for the sub-let premises. However, the nature of the deed was such that it was entered into in order to sub-let the premises. The issues regarding the termination of contract and the breach of contract including the breach of essential terms and the ability to recover from damages after the termination of sub-lease agreement has been taken into consideration. In order to determine the facts of the case, the High Court has relied upon the true intentions of the parties which could be traced from the clearly written wordings with a precise language of the lease deed. The 1993 lease deed provided relevant information regarding the loss of bargain damages that, in the perspective of the Court should be immediately paid after the term of the deed 1993 deed and the lease deed has been terminated for breach of the term.

Part C: Analysis of Gumland Property Holdings Pty ltd. V Duffy Bros Fruit Market ( Campbelltown) Pty Ltd (2008) 234 CLR 237

Conclusion:

It can be finally concluded that, the tenant failed to pay the rent within the prescribed time period and in such process did not comply with the provisions of the lease covenant that caused breach of the term. Therefore, the lease has been terminated by the landlord for receiving compensation of loss of bargain damages.

The issues of the case are related are related to misleading and deceptive conduct performed by the defendant company in accordance to the provisions of the Australian Consumer law. The issue is also associated with the fact that whether, there was a fraudulent misrepresentation under the provisions of common law.

According to the provisions of Section 18 of the Australian Consumer law and Schedule 2 of the Australian Competition and Consumer Act 2010, an individual operating trade and commerce must not involve him into activities that mislead the public, consumer and business as a whole. It is worthwhile to refer here that, a fraudulent misrepresentation can be defined as a statement under the provisions of common law to be something about which the parties to contract has not gained appropriate knowledge. Such a misrepresentation misleads and deceives the party to the contract as well as the general public. In the case of Derry v Peek [1889], a 3- part test has been conducted by the Court in determining the fact that any fraudulent misrepresentation has taken place or not. In this case, the Court relied on the following points for the purpose of determining whether the statement was fraudulent or not-

1. If the defendant was aware that the statement he made was wrong.
2. If the statements was not believed by the defendant.
3. If the statement was reckless in relation to the actual truth.

In this case, it can be observed that the defendant company was responsible for carrying out the advertisement campaign where there was a clearly mentioned statement Unlimited ADSL2+ for $29.95 per month”. However, the actual price was $59.95 per month. In this regard, the Australian Competition and Consumer Commission came into effect and claimed that the advertising company is misleading and deceiving its consumers and the general public. Therefore, the Australian Competition and Consumer Commission brought a claim against misleading and deceptive activities during the tenure of trade and commerce. In this context, the Court applied the case of Derry v Peek [1889] UKHL 1. It was held by the Court in accordance to the provisions of Section 18 of the Australian consumer Law and Schedule 2 of the Australian Competition and Consumer Act 2010 (Cth), that the defendant should not have involved in misleading and deceptive practices. Therefore, as a result of breach of contract the defendant company was liable to pay a fine amounting to $2 million. However, the decision was overruled by the Federal Court and imposed a penalty amounting to $50,000. Therefore, it is worth mentioning that the individual involved in fraudulent misrepresentation should have clear idea regarding the fact that the nature of the act is such that it could highly mislead and deceive the public. However, in the opinion of the Court, the misleading conduct shall not be a breach for few consumers who are not concerned with the protection of their interests. The same fact is applicable in the case of fraudulent misrepresentation if the party to the contract had clear idea regarding the actual truth.

Part D: Fraudulent Misrepresentation in Australian Contract Law

Conclusion:

In the conclusion, it can be stated that the allegations regarding fraudulent misrepresentation and misleading and deceptive conduct has been overruled by the Court.

The issue in this case was regarding the fact that whether Pedro can sue Lisa by imposing certain terms of contract on her.

During the formation of a contract between two or more parties, they are legally binding to it. However, in such cases, the claimant can bring an action of claim in case of breach of contract by obtaining damages for the same. However, the parties are not at the authority to enforce each and every terms of the contract in detail. This can be explained by keeping into consideration the inclusion of an exclusion clause which has been established in the case of Nordenfeldt v Maxim Nordenfeldt Guns and Ammunition Company. In this case, the Court emphasized upon the importance of an exclusion clause and held that, the exclusion clause has proved to be beneficial in protecting the parties to the contract from being personally liable. In order to provide appropriate protective standards in business operation, the exclusion clause has been incorporated as observed in the case of Stenhouse Australia v Phillips. The case of Lindner v Murdock’s Garage was of utmost significance as it clearly explained the essentials of an exclusion clause. However, in the present case, the Court relied on the fact that, if an exclusion clause is included in the contract, then it can provide business protection to the greatest possible extent.

A sale agreement was signed by both Pedro and Lisa in that agreement it was clearly mentioned that Lisa intends to sell her entire business to Pedro. However, the sale of jewelry should not be operated in Australia. The initial stages of the business were started by Lisa after tenure of one year in Queensland. The terms of the contract which constitutes breach can be applied in this scenario. In the first instance, the case of Stenhouse Australia v Phillips [1974] AC 391 can be referred. This is due to the reason that, exclusion clause is sometimes referred to as the restraint of trade clause which needs to be incorporated in order to protect business operations and restrain an individual from entering in illicit trade related activities in the future. In this context, reference can be made to the case of Nordenfeldt v Maxim Nordenfeldt Guns and Ammunition Company which states that as a result of inclusion of the exclusion or restraint of trade clause, the business is reasonably protected by outdoor intervention. It is important to apply the case of Lindner v Murdock’s Garage (1950) 83 CLR 628 because in this case, it was held by the Court that an exclusion clause can only be applied if it seems relevant to apply such clause to a particular case. Therefore, in regard to the present scenario, it can be stated that the exclusion clause cannot be imposed on the business operated by Lisa in order to protect it. This is because the business was originally operated in Queensland and on the other hand Pedro operated his business in Victoria. Therefore, the exclusion clause was held to be unreasonable.

Conclusion:

It can be finally concluded that, the imposition of the exclusion clause shall not be held valid on Lisa’s business.

References:

Cases:

ACCC v TPG Internet Pty Ltd [2013] HCA 54.

Derry v Peek [1889] UKHL 1.

Lindner v Murdock’s Garage (1950) 83 CLR 628.

Nordenfeldt v Maxim Nordenfeldt Guns and Ammunition Company [1894] AC 535.

Stenhouse Australia v Phillips [1974] AC 391.

Journals:

Pavel, C. E., & Lefkowitz, D. (2018). Skeptical challenges to international law. Philosophy Compass, e12511.

Crofts, P., & van Rijswijk, H. (2018). Traumatic origins in Hart and Ringu. In Law and Justice in Japanese Popular Culture(pp. 56-69). Routledge.

d’Aspremont, J., & Weller, M. (2015). The collective security system and the enforcement of international law. The Oxford Handbook of the Use of Force in International Law, 129-56.