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The Discourses Of ADR & Legal Education

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The Discourses Of ADR & Legal Education

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Part A
1. This case was heard by the Supreme Court of Victoria.
2. The judge in this case was DODDS-STREETON J.
3. The full text judgments of the cases that are located on electronic databases or on the websites of the courts use a format that is known as media neutral citation. In case of the citation, there is no volume number and the abrogation of the court is used instead of the abrogation of the law report.
4. In this case, the matter was concerned with a unilateral contract. In this context, a unilateral contract can be described as a contract in which a party making the offer, invites the acceptance by actual performance instead of making a promise. This can be further illustrated by an example, when a prize is offered in return for a lost dog has been accepted by the person who has returned the dog.
5. The definition of a unilateral contract was provided by the court in Carlill v Carbolic.
6. The Australian case in which the unilateral contract was defined was titled R v Clarke (1927) 40 CLR 227.
7. According to Dodds-Stretton J, the evidence and witnesses that were produced by Mr. Blancato were more coherent, reliable and detailed as in his statement Mr. Blancato, it has been stated that the address was very common and he also accepted that the chance of buying the machinery at a price of one dollar was available only to be BISG dealers while it was not directly sold by Canon, certain models were not included in the offer like the high and black & white and colored copiers. It was also mentioned in the statement that this condition applied only if the rental agreement was completed on when the customer did not require the machinery, whichever was late. But the judge felt that the evidence and witness delivered by Mr. Jenssen was inconsistent and undependable.
8. The decision of the court was that no basis was present for injunctive or declaratory relief. Because the plaintiff could not succeed in establishing a unilateral contract and recognized its customer entry in the rental arrangement, the claim brought by the plaintiff was dismissed by the judge.
9. According to the claim made by the plaintiff, they had acknowledged the offer by making the first customer entered a rental arrangement with CFA and in this way, they were eligible for purchasing all the Canon copiers from the dealer area at a price of one dollar. Along with it, it was also claimed by the plaintiff that they were eligible for buying all the machinery concerning which they had secured customers in the dealership the after completing the rental agreement. It was also stated by the printed that they can purchase the machinery at a price of one dollar in accordance with the original offer which comprised an implied term according to which even if the agreement expired before the machinery ‘s expiry date. After the expiry of dealership, the defendant declined to sell this equipment. In this raid was claimed that there has been a breach of contract by CFA.
10. However the arguments made by plaintiff failed due to the reason that they could not establish a appropriate unilateral contract of the class mentioned in Carlill v Carbolic Smoke Ball Co. The petitioner had not presented its claim on the grounds of identity theory of cases discussed in Vroon BV vs. Foster’s Brewing but for wholeness. It was the decision of the court that none of these classes were applicable in this case. The judge thought that proper evidence was not present to support the allegations made by the plaintiff that an offer for certain promise has been made at the conference according to legal vocabulary. Similarly, it was not difficult to decide what has been said or the letters exchanged between them during the trial. Moreover, the conduct and the communications after the conference, did not prove that had acted in accordance with the terms of the agreement. Therefore all these reasons was the failure of the claim brought by the plaintiff.
11. (a) Mildura Office Equipment & Supplies Pty Ltd v Canon Finance Australia Ltd [2006] VSC 42 will be the citation for the appeal. (b) The appeal was dismissed due to reason that the witness of Mr. Jensenn was not consistent, sketchy and shifting. It did not provide the proper details while the witness given by Mr. Blancto was reliable, coherent and certain. (c) one of the trial judges, Kellam JA observed that the presentation of the plaintiff was a comical skit and it was certainly not sufficient as it lacked the details regarding the identification of the machinery and the usage. According to her, clear and proper details were not given regarding the date of the conference; the number of customers who were going to entered into an agreement and all the dealings that took place concerning the acceptance and termination of the agreement. According to her, no distinct from his offer was present for the act of the prom is required for establishing the contract. She also stated that the printed could not prove a unilateral contract of the class of Carlill v Carbolic.
12. Yes in my opinion, the case has been dealt fairly by the court. The court found that the evidence produced by the plaintiff was unreliable and inconsistent. There was a lack of a unilateral contract as claimed by the plaintiff. The plaintiff has based his case only on the contract it had to be several difficulties in its claim. No information was provided regarding the machinery or equipment that was retained with the plaintiff. Instead of being of detailed nature, the presentation of Mr. Blancato was a general nature. The counsel claimed that the statements made at the conference were not too clear and certain to result in a contract of the class of Carlill v Carbolic.
Part B
Alternative dispute resolution can be described as a way to resolve the dispute between the parties out of court. Generally, the process of ADR includes negotiation between the parties and sometimes this process is facilitated by a neutral third person. In this way, the ADR processes can be used by the people for solving their problems themselves. ADR processes include direct unassisted negotiations between the parties, negotiations between the lawyers of the parties, mediation, conciliation, expert determination, expert appraisal and arbitration (Catherine, 1999). However, a feature that is present in all these processes is that the parties to the dispute have control over the process and similarly on the outcome of the process (Douglas, 2008). Therefore in case of ADR processes, a decision is not imposed on the parties unless the parties agreed in advance that they will be bound by the determination made by a third party. In this way, the ADR processes encourage the parties in dispute to find their needs and interests and also to explore different ways in which they can find solutions that can fulfill their needs (Kenneth, 1999). Although the parties may have different needs and interests but in many cases it is possible to satisfy all of them without having the need for compromising.
In this way, we see that there are certain advantages that are available in case of alternative dispute resolution processes. Sometimes the people are involved in disputes that are also very significant and worrying for the parties, but these disputes can be resolved in a better way outside the adversarial system or the court system (Michael, 2007). In the same way, there are certain disputes regarding which a legal solution is not suitable. Similarly, there are many cases where the court action will make the situation even worse. Under these circumstances, it can be said that the alternative dispute resolution processes in general have a number of advantages as compared to the adversarial system (Morris, 1999). Therefore the ADR processes are generally faster and less costly. In case of ADR processes, the parties get the chance to explain their side of the story in their own words. Moreover, the ADR processes are more informal and flexible and are also more responsive to the individual needs of the parties that are involved in the dispute. Due to the involvement of the parties in the ADR processes, a greater commitment is created to the result and as a result, the compliance with the result is also more likely. ADR processes are confidential in nature and at the same time, these processes are more likely to preserve the goodwill between the parties (Spencer and Altobelli, 2005). At least, it is expected that the ADR processes do not escalate the conflict between the parties that is particularly important in cases where a continuous relationship is present between the parties.
On the other hand, traditionally the legal system has been used for conflict resolution. The legal system provides the necessary structure required for resolving many dispute. Sometimes the parties to the dispute cannot arrive at an agreement by using collaborative processes. Moreover in case of some disputes, coercive power of the state is required to enforce resolution, irrespective of the way the resolution has been achieved. In the same way, it also needs to be noted that in many cases, the parties want the help of an included when they are involved in a dispute. This is particularly true in case of the disputes in which perceived legal rights, legal wrongdoings or a threat of legal action against the parties is involved. In such cases, the parties want advice how they can legally deal with the situation.
In the end, it can be said that the alternative dispute resolution processes provide a much required alternative to the adversarial system that had been traditionally used for resolving disputes. The ADR processes have been used with significant success to the cases brought before the courts but ADR can resolve more disputes before they enter the legal system. Even after the dispute has entered the legal system, the ADR processes have much to offer to the partisan dispute. By promoting EDI processes outside the legal system, we can change the views of the society regarding dispute resolution. By adopting these processes, the people can learn to resolve their own disputes and once the possibility has been demonstrate it, they will be willing to learn how to resolve their own disputes.
The issue in this case is it a unilateral contract has been created between Andrew and Kim. In this case, Andrew had announced a reward of $200 to any person who returned his iPad. Kim found the iPad and took it to the lost and found area where Andrew took the iPad but in this case, Kim was not aware of the fact that Andrew had announced the reward of $200 to the person who finds and returns the iPad. Therefore the issue is if this award can be collected by Kim.
In this case, a unilateral offer has been made by Andrew. In case of a unilateral contract, one party who is called the offeror makes a promise in return of an act by the other party, who is called the offeree (Vermeesch and Lindgren, 2005). According to this contract, if the offeree acts on the basis of the promise made by the offeror, the offeror is legally bound to fulfill the contract (Carlill v Carbolic Smoke Ball, 1893). However it needs to be noted that in such a case the offeree cannot be forced to act as no return from this has been made to the offeror (R v Clarke, 1927). Therefore, after the act has been performed by the offeree, there is only one enforceable promise, the one made by the offeror. Generally, reward offers are treated as unilateral contracts. In this case, the party making the offer of reward cannot force any person to fulfill the reward offered (Graw, 2008). On the other hand, an offeree can sue for the breach of contract if the reward is not given after the requirements of the contract have been fulfilled by the offeree.
But in case of a unilateral contract also, the elements necessary for the formation of the contract are the same. Therefore, an offer has to be made by the promisor, it should be accepted by the other party, consideration should be present and the parties should have legal capacity (Gillies, 2004). Therefore these requirements should be fulfilled in order to create a valid and enforceable contract between the parties (Fleming, 2011). On the other in the present case, an offer has been made by Andrew to give a reward to any person who found and returned his iPad. This can be treated as a unilateral offer. However, Kim was not aware of this offer when she found the iPad and took it to the lost and found area of the university. Therefore, one of the essential elements required for creating a valid contract is not present in this case. As Kim was not aware of the offer, she cannot accept the offer. As a result, a valid and enforceable contract is not formed between Andrew and Kim. Therefore, Kim cannot enforce the promise made by Andrew according to which he was going to give a reward of $200 to the person who returned his iPad.
Hence, Kim cannot recover the reward of $2000 from Andrew under the law of contract.
Catherine, M. 1999, Moulding of Lawyers: ADR and Legal Education, 17 Windsor Yearbook of Access to Justice 271
Douglas K., (2008) Shaping the Future; The Discourses of ADR & Legal Education, 8 Queensland University of Technology Law & Justice Journal 1 at 138
Fleming, J., 2011 The Law of Torts Law Book Company
Gillies P., 2004, Business Law 12th ed. Australia: Federation Press.
Graw, S., 2008, An Introduction to the Law of Contract. 6th ed. Australia: Thomson.
Kenneth, A. 1999, Impact of Mediation on Legal Education and on the Profession, 17 Windsor Yearbook of Access to Justice 256
Michael, B. 2007, ADR Education from a Litigator/Educator Perspective, 81 St. John’s Law Review 1
Morris C., 1999, Moulding of Lawyers: ADR and Legal Education, 17 Windsor Yearbook of Access to Justice 271
Spencer D & Altobelli T. 2005, Dispute Resolution in Australia: Cases, Commentary and Materials, Lawbook Co.
Vermeesch, R. B., and Lindgren, K. E., 2005, Business Law of Australia 11th ed. Australia: Butterworths
Carlill v Carbolic Smoke Ball co [1893] 1 QB 256
R v Clarke (1927) 40 CLR 227

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