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Identify Legal Problesms

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Identify Legal Problesms

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Case analysis

In Supreme Court of Victoria, Common Law Division¸ Melbourne

Her Honourable Justice Julie Anne Doods-Streeton. Honourable Justice is a title used to address judges of Higher or Superior courts.

Medium neutral citation is considerably unofficial law report citation that is legally regarded as an internet based reference. 

Medium Neutral Citation: [2006]; VSC 42 is the case that should be cited.

As stated in 129 of this case it can be deduced, that a unilateral contract is defined as “a contract constituted by an offer of a promise for an act” pursuant todefinition in Australian Woollen Mills Proprietary Ltd v The Commonwealth [1954] HCA 20; (1954) 92 CLR 424 at 456 in contrast to the usual exchange of promises. To this effect the relevant act herein constitutes both the performance and the acceptance of the offer and no separate notice of acceptance is required.

It can be said that it was in Carlill v Carbolic Smoke Ball Company, (1892) that the definition of unilateral contract was first established

The defendants herein made an advertisement for their product (i.e. pharmaceutical smoke ball) t in a newspaper. In the advert it was stated that a 100L reward was to be paid by the Company to any person who contracted an epidemic influenza cold or any related disease caused by the cold from using the ball for the said two weeks, three times daily, as to the printed directions supplied with each ball. Additionally, the advert claimed that the said 1000L was to be deposited with the Alliance Bank, Regent Street as a claim that the company was sincere in the advert.
On seeing this advert Mrs. Carlill (herein the plaintiff) purchased one of the said “smoke” balls and used it as per the direction in the advert. Subsequently, she caught the flu and put a claim with the company for a reward for which the company refused to pay. On learning this, Mrs. Carlill sued the company for the reward.
At trial the presiding judge, Justice Hawkins, held that Mrs. Carlill was entitled to recover the reward.

Essentially the definition of unilateral contract emerged and was contested in CEarlill v Carbolic Smoke Ball Company at the Court of Appeal [1893] 1 QB 256; [1892] EWCA Civ 1.
Justice Julie Doods-Streeton found that the testimony of Janssen, herein the plaintiff’s witness, were inconsistent, imprecise, and as lacking details. Consequently, she considered it unreliable. In her verdict she established that Mr. Blancato’s accounts, herein the defendant’s witness, were consistent, direct and credible. In her opinion she preferred Mr. Blancato evidence.

This significantly informed was that her judgement which was the final outcome of this case was by the two accounts of evidence.

In its decision the court dismissed the plaintiff’s claim sighting insufficient evidence for a course of conviction against the defendant for any breach of the said unilateral contract in question.

The court upheld the decision of the trial Judge Doods-Streeton J. In her opinion, evidence presented established that the plaintiff failed to establish the existence of a unilateral contract constituted by the defendant’s offer made at the conference in February 1998 and accepted by the plaintiff’s procurement of its customers’ entry into rental agreements with CFA. It follows that the plaintiff’s claim should be dismissed.

In the proceeding, the plaintiff claimed that the defendant, Canon Finance Australia (“CFA”), breached an agreement made between the parties in early 1998.
In Par. 157 of the Mildura Office Equipment  v CF Australia Ltd, it is argued that the statement of the witness’ accounts of the plaintiff was not sufficiently detailed and comprehensive to achieve the requisite level of certainty in relation to essential matters and contingencies regarding the case. It was thus argued that the said evidence was not sufficient to constitute “a legally enforceable offer of a promise” even where language of unequivocal commitment is employed.

Medium Neutral Citation: (2007) VSCA 112, Mildura Office Equipment  and Supplies Pty Ltd v Canon Finance Australia Ltd [2007] VSCA 112 (1 June 2007)
The appeal was dismissed on the ground of unanimous agreement of a three judge bench in a concurrence with the judgement of the trial judge DOODS Streeton J.
In a three judge bench, Judge Keller JA, who presumably the presiding judge having handed down the main the judgement, dismissed the appeal of  claim for breach of contract brought by the appellant against the respondent, Canon Finance Australia Limited (CFA), on the basis that the appellant had failed to prove the existence of any such contract.

In my opinion the case was fairly dealt with based on evidence presented by the counsel of the parties herein. Convincingly, with all legal prudence the appellate court could not agree more with the trial judge. The outcome of the appeal confirmed that the trial judge did not err in the case and that she fairly dealt with it pursuant to the evidence and witnesses’ account presented.

In the view of the appellate court, the trial court correctly rejected the contention that a contract was concluded when the appellant procured one or an unspecified number of rental agreements between its customers and the respondent.
From the excerpt in the appellate court’s decision the appellant failed to understand that the contract in question became bilateral right after at the acceptance of the offer by the respondent.  
It meant a lot of weight when the presiding judges at the appellate court, Buchanan, Ashley JJA, and Kellam AJA, unanimously concurred with the view of the trial judge basing on facts and evidence presented at the trial and appellate courts.
Argument for and Against Adversary System
Adversary system is a process where arties to a conflict or a controversy design and make heard their arguments find and present evidence, wherein witnesses are called and questioned witnesses in conformity to laid down rules. This process in most is presided over by a judge or a jury who acts as a fact-finder. Thus is required to remain impartial and very neutral.
The adversary system model of regulation is mimicry of   traditional courtroom procedures. . On the other hand, Alternative dispute resolution (ADR) refers to the resolving a conflict without necessarily having to go to court. In most cases this is a process that is tailored to promote harmony and good relations among parties and ensuring that the social ties are not broken.
While the two sides of the legal controversy got postulations and support, one fact that must be accepted is the benefit or demerit that comes with each of them. The adversary system has been criticized as being a system that involves cumbersome, costy, and conflict marred procedure. Critics of this system call for to advocates to embrace and adopt non-adversary methods in addressing issues of disputes between conflicting parties.  Surrounding this legal controversy is a contestation and ranging disparage of the legal system. Adversary system has been criticized from all angles, both academically and in practice.
This adversarial system has had ardent critics just as much as staunch since time immemorial. Opponents of this system raise fundamental questions: Is what is called justice system preoccupied with finding truth or resolving disputes? How possible is it for poor people to have the same access to legal representations as rich people? How can a system that is vulnerable to manipulation, artifice and pure guile ensure justice
In the lead-line of the opponents of this system was the late Warren E. Burger, the ex-President of the US judiciary, who voraciously lambasted system as overzealous. Warren notably asserted that out of too much zeal, lawyers file so many artifice lawsuits and motions within the system that discourage out of settlements. Opponents of adversary system argue that a system in conflict itself can solve problems that exist between parties. While it is referred to as a system, the question is whether it is really one. The numerous appellate cases and throwing of cases for lack of sufficient evidence further casts more doubt on the said ‘system’.
Proponents of the adversary system, however, are at arms to defend criticisms pointed at the system. In rebuttal, they agree on the need for conflicting parties to take charge of the process of resolution. They claim that, however much lawyers may be credulous to corruption, like any other outfit, they got a code of ethics that is governing them and which, that when executed can deal with cases of demeanors very efficiently. Proponents of adversary system concede that although laws of evidence may be susceptible to exploitation they are the only way through which fairness can be achieved and beguile of the judiciary can prevented.
Opponents of adversary system argue that is its sedate and unwieldy nature. Proponents of adversary system, however, argue that some of the studies done show that substantial delays in resolution are faced by litigants even in courts where settlements were actively encouraged and adversary trials discouraged. They maintain that despite its cumbersome nature, its methodical approach is necessary to protect people from exploitation or violation.
There is a feeling that lawyers are “hired guns” whose can violate in and everything just to make legal representation to outlay truth. Others claim that advocates can file artifice lawsuits just to try and make cash and in order to dominate in the adversary process. Opponents of this system argue that the same laws of evidence work against fairness it claims to guarantee by barring presentation of information that would be useful to the fact-finder.
Proponents of ADR argue that adversary system is inaccessible to many. They argue that an poor people accused of crime(s) can never have legal representation as the rich and that it would be unrealistic to say that parties in a civil suit involving corporations like Samsung or Apple, an injured party (plaintiff) would have an equal plea power. Conversely, those who are pro-adversary system assert that it is not the law but socioeconomic conditions that beget the disparity in access to legal representation . They equally assert a change to delivery of legal services would do no much in addressing the existing grounded disparity. They also argue that neither members of population who have no access nor afforded egal representation are accorded a place through the existing contingency fee arrangement paid to attorney for representation that is highly criticized.
Most legal experts consensually agree that the benefits of adversary system brings with it outweighs its inherent drawbacks. On the edge of the existing controversy is that it brings forth a system that shield people against abuse. Although it can be manipulated to serve the interest of those who least deserve, it must also be accepted that as a merit adversary system would offer every the less fortunate a platform for hope and shield against the powerful.
Although many do accept that adversarial system may be faulty due to the fact that it, they still believe modern adversary must not be blindly discredited for the few benefits it may bring forth. It is a pure reflection of the ideal of assurance that everyone is entitled to be represented and be heard before an impartial, fair, independent and free court. Adversary system is arguably the most precise conduit to unravel facts and information that judges or juries may need to resolve conflicts amicably and efficiently as litigants each develop and to present their own proofs and arguments.
There’s nothing binding between Bastian and Penny. The element of acceptance and counteroffer are missing. For a contract to be legally binding the two parties in question ought to reach an agreement. To this effect when Bastian offered to pay Penny $60, Penny rejected the offer, making a counter-offer on the price, which was not accepted by Bastian who moves ahead to look around for a better deal. Presumably, this meant that Bastian did not accept the counter-offer nor was he willing to make a new counter-offer. As held in Hyde v Wrench (1840) Beav 334, a counteroffer cancels the existence of an initial offer thus making it void. The failure to make a counteroffer by the offeree means that no binding contract was entered into as Bastian chose to discontinue the effort to negotiate a contract.
The oral contract in question would be binding only if Penny did not make a counter-claim.
A minor person (herein Peter) lacks the legal capacity to enter into a contract. And as such is treated as incompetent. Therefore, the offeror here chose to enter into a contract with a minor (herein the offeree) tin full knowledge that such a contract was voidable and that the minor could negate or breach or revoke the said contract at any time. In this case specifically the service provider cannot sue Peter’s parents as they are not a party to the contract and may not be held liable if the Peter does not fulfil the contract terms. The only situation where the service provider can sue is when a parent or both parents of Peter did co-sign the contract thus liable and can be sued.
In Mohori Bibee v Dharmadas Ghose it was ruled that a contract entered into by a minor is void contract that lacks legitimacy to be enforced from the beginning. Established, was that one not even the guardians or parents of a minor can be held liable or sued for breach of contract by the minor. Established was that the matter of age was known to the service provider.
Supreme Court of Victoria. 2006. Mildura Office Equipment & Supplies Pty Ltd v Canon Finance Australia Ltd [2006] VSC 42 (16 Febreuary 2006). Melbourne. Available at https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2006/42.html?stem=0&synonyms=0&query=title(Mildura%20Office%20Equipment
Supreme Court of Victoria, Court of Appeal. 2007. Mildura Office Equipment  and Supplies Pty Ltd v Canon Finance Australia Ltd [2007] VSCA 112 (1 June 2007). Melbourne. Available at https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2007/112.html?stem=0&synonyms=0&query=title(Mildura%20Office%20Equipment
William Markham. 2002. An Overview of Contract Law. Available at https://www.markhamlawfirm.com/law-articles/contract-lawyer-san-diego/
Peter D. Maynard . Alternative Dispute Resolution, with Emphasis on Arbitration and mediation. Available at, https://www.maynardlaw.com/Articles/alternative_dispute_resolution.htm
Carlill v Carbolic Smoke Ball Co. Court of Appeal [1893] 1 QB 256; [1892] EWCA Civ 1. Available at https://www.australiancontractlaw.com/cases/carlill.html
“Essays: The State of the Adversary System 1993.” 1993. Valparaiso University Law Review 27 (spring).
Doyle, Stephen, and Roger Haydock. 1991. Without the Punches: Resolving Disputes Without Litigation. Minneapolis: Equilaw.
Kagan, Robert A. 2001. Adversary Legalism: The American Way of Law. Cambridge, Mass.: Harvard Univ. Press.
Lord Lindley et al. 1903. Calcutta High Court. Mohori Bibee Vs. Dharmadas Ghose (1903) 39 I.A. 114; 30 Cal.
High Court (England and Wales). 1840. Hyde v Wrench [1840] EWHC J90 (Ch) (8 December 1840).

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