Construction Law NBC3005 Answer

A. Legal System

Question 1: Difference between the Common Law System and Civil Law System

There are two different forms of law systems that exist in the actual practice. These are the “common law system” and “civil law system”. The similarity between these exists in the form of the aim of bringing justice. At the same time, there are different similarities that can be observed between these. These are historical origin, “judicial precedent” and the roles that the judges play.

In support of similat case References Mabo vs. Queensland (1992), the main principle of the “common law system” is to “stand by” decisions. In other words, the decisions given in the previous cases are taken as a reference for future cases as in Mabo vs. Queensland. This ensures “consistency” and “predictability” in the system of law. It can be seen that this feature of the “common law system” is not present in the “civil law system”. In contrast to this, the origin of the “civil law system” is rooted in the “Roman laws”. The main framework of this law is based on “statutes & codes”[1]. Each of the details of this system is provided in the form of codes. The provisions present in this code are followed strictly in this form of law system. It can be seen that in the countries where there is “civil law” is applicable there can be seen a more limited role of the judges than in the countries where “common law” is applicable. On account of "common regulation", regulations are applied by following the arrangements of the code as opposed to making new regulations in light of the circumstance. There can likewise be seen a few distinctions in the wellsprings of these regulations. On account of the "customary regulation," the regulations are made by the authoritative bodies like parliament. Then again, the laws of the "common regulation" situation are more unbending as codes and guidelines. Here in the regulation framework, the codes are considered as the legitimate texts that cover a large number of subjects on which the law is based. Some of these are laws regarding civil, criminal, and administrative matters. All of these specify the judgment that a judge should make in different cases.

Role of Judges

The role of judges and other people related to the legal system also creates another difference between these laws. In the case of the “common law system”, the judges have more power to shape the legal system by making new amendments to the laws. The action of the judges depends on the situation of each of the cases. Moreover, there can be regular changes in the legal system of making decisions according to the changing conditions of the country and society. Because of this flexibility in making changes in the law depending on the situation of the society, there can be seen a continuous evolution of law present in this system. On the other hand, the “civil law system” makes the roles of the judges very much limited[2]. Here, the judges act more like arbitrators whose work is to make decisions on the basis of the provisions made in the code depending on the case. This makes this system rigid in its legal decisions. In addition to this, by following the rigid provisions of the code it becomes impossible to adapt new things according to the changing condition of the society.

Legal Reasoning

In addition to this, there can also be differences between these systems in the form of “legal reasoning” & “augmentation”. In the “common law system,” there can be seen a wide application of “legal reasoning” for interpreting law. In this system there can be arguments, recalling previous cases, and considerations that are best in the present situation for making new laws[3]. In contrast to this, there can be seen more reliance on “deductive reasoning” in the “civil law system”. The regulations written in the codes are followed by the judges for each of the cases irrespective of the circumstances of the case.

Question 2: Roles and purposes of the Australian Constitution

The constitution of the country Australia acts as the “legal framework” of the system of “government & governance” of the country. It was started in 1901. This defines the powers & responsibilities of the federal form of government of Australia. Furthermore, the relationship and distribution of power between the center & state of this country is also defined here. The constitution of Australia plays an important role in the proper functioning of the country and its system of politics. The main roles played by the constitution of the country of Australia are as follows.

Chamberlain vs. Queen (1984)

The main role played by it is to establish a government in this country to carry out the essential activities within the country. With the help of the Constitution, the government is made. Also, the entire system of government is divided into three parts such as “parliament”, “executive” and “judiciary”. These three are considered to be the pillars of the government as in the case of Chamberlain vs. Queen (1984).[4] In the parliament, there is present one queen, that is represented by the “governor-general”. There is also the Senate and the “House of Representatives”. The selection of the Senate is done on the basis of the states present in the country in an equal manner without comparing the population of the states. While the selection of the “House of Representatives” is done as per the population of the states. The constitution provides the details of using the power of the “executive”. Also, the duties of the executive are also specified by this. The executive is mainly represented by the queen present in the country. The post of the queen is assumed by the “governor-general” of this country. The different constitutional duties are played by him.

Organizational Framework

In the executive part there also presents a framework of people who play different duties. This is headed by the “prime minister” who has most of the “house of representatives” under his control. In addition to this, there is a judiciary part that is completely independent of these two parts. The “High Court” of Australia is the highest judicial body present in this country. This regulates all the legal matters of this country. The separations of power in these three forms make sure that each of these parts can work independently and also, there is interdependence between these parts in running the country.

Relation of federal & State relation

An important role that is played by the constitution of Australia is to maintain a proper relationship between the center & states of this country. The federation defines that this country is made by the federation between different states. It can be seen that there are a total number of six states present in this country. There are provisions in the constitution that specify that there are certain powers that can only be exercised by the state or center. Also, according to the construction, there are certain powers that are shared between these two[5]. The center has the power to control the system of defense, immigration, trading, taxes & many other matters of the interest of the entire country. On the other hand, the state exercises the power on education, transport, health, and law that can be made by the state government. By this, a balance of power is created between the center & state.

The process of amending the constitution is through a referendum. In this process, votes are collected from the potential voters. The decision supported by the majority of voters is implemented. Because of this provision in the constitution of Australia, the country is enabled to make changes in the system of the country according to the needs of the situation.

B. Finding Legislation

Question 3: Area of regulation of Section 8 in Division 1 under Part 2 in Domestic Building Contracts Act 1995

There are different laws regarding the buildings. These all are the ones that intended to regulate the making of domestic buildings. Among the different acts in this regard, one of the acts is the “Building Contracts Act”.

Section 8 of Division 1, under Section 2 of the “Domestic Building Contracts” Act 1995, is a significant guideline that expects to safeguard customers in “domestic building contracts”. This segment explicitly addresses the necessity for a composed agreement between the manufacturer and the owner, explaining the freedoms and commitments of the two players. In this project, the main thing that will be investigated is the vital components of Segment 8 and give a present-day life guide to represent its application.

Involved Parties

First and foremost, Section 8 of the “Domestic Building Contracts” Act 1995 specifies that a composed contract should be placed between the manufacturer and the property holder for any domestic building work surpassing an endorsed sum. The motivation behind this prerequisite is to guarantee clearness and straightforwardness with respect to the extent of work, expenses, timetables, and other significant parts of the undertaking[6]. By having the agreements recorded as a hard copy, the two players have a legitimately restricting reference report that can assist with forestalling misunderstandings & disputes.

Ease of understanding

To comprehend how Section 8 capabilities, in actuality, one should think about the instance of Mr. Smith, a property holder who needs to revamp his kitchen. Mr. Smith enlists a manufacturer, Mr. Johnson, and they go into a verbal understanding in regards to the venture. Be that as it may, without a composed agreement, the agreements, for example, the installment plan, explicit materials to be utilized, and project cutoff times, are not obviously characterized. As the remodel advances, conflicts emerge about the nature of work, driving the two players to turn out to be progressively disappointed.

Binding with rules & regulations

In this present circumstance, Section 8 would have an urgent impact in forestalling such a question. By requiring a composed agreement, the Demonstration guarantees that the two players have a reasonable comprehension of their freedoms and commitments[7]. In Mr. Smith's case, a composed agreement would have illustrated the settled-upon agreements prior to beginning the redesign, ruling out misinterpretation.

Data of contract

Besides, Section 8 likewise forces an obligation on the manufacturer to give specific data to the property holder prior to going into an agreement. This incorporates details like the developer's , contact data, and whether they hold any expected licenses or protection[8]. This data is crucial for the owner to come to an educated conclusion about who to connect with for their structure project.

Case study of Mr. Smith

Going on with the case of Mr. Smith, in the event that a composed agreement had been expected according to Section 8, Mr. Johnson would have been obliged to give all the vital data. Mr. Smith might have confirmed Mr. Johnson's certifications, guaranteeing that he was managing an authorized proficient who conveyed satisfactory protection inclusion. This would have given Mr. Smith inner serenity, realizing that he had shared his undertaking with a certified person who could be considered responsible for any potential issues that might emerge during the remodel.

Contract Terms

Moreover, section 8 additionally addresses the terms that should be remembered for the composed agreement. These terms incorporate an itemized depiction of the work to be played out, the agreement cost and installment plan, the normal beginning and culmination dates, as well as any pertinent guarantees and debate goal strategies.[9] By specifying these necessities, Area 8 plans to safeguard the property holder by guaranteeing that the agreement covers generally fundamental angles and shields their inclinations.

Safeguarding Buyers

All in all, Segment 8 of Division 1, under Section 2 of the “Domestic Building Contracts” Act 1995, sets out the prerequisite for a composed agreement among manufacturers and property holders. This arrangement plans to manage and safeguard buyers in “domestic building contracts” by giving clear and straightforward documentation of the settled upon agreements [10]. The case of Mr. Smith's kitchen redesign features the significance of section 8, demonstrating the way that a composed contract can forestall disputes & promote a smoother and better structure process for all gatherings included.

C. Case Law

Question 4: Condition of application of Masters v Cameron (1954) 91 CLR 353

The instance of “Masters v Cameron” (1954) 91 CLR 353 is a milestone choice in Australian contract regulation that arrangements the enforceability of different forms of contracts. For this situation, the High Court of Australia set down rules to decide if an agreement is enforceable or not.[11] The standards laid out for this situation keep on being applicable in surveying the legitimacy of contracts. To portray the circumstances when an agreement might be enforceable, we will look at the key elements framed in “Masters v Cameron” and give present-day models.

Masters v Cameron (1954) 91 CLR 353

The main key figure deciding the enforceability of an agreement is the aim of the gatherings. In “Masters v Cameron”, the court expressed that an agreement should include a serious aim to make lawful relations. Basically, in the event that the gatherings don't mean to be lawfully limited by their commitments, the agreement will need enforceability [12]. For instance, on the off chance that two companions consent to meet for espresso and one companion offers to pay for the other, there is no goal to make a legitimate relationship in the case of Masters v Cameron (1954). In this manner, assuming the companion neglects to pay, the other can't make a lawful move to uphold the understanding.

Proposal of parties

Another significant variable is whether there is a proposition and acknowledgment. For a contract to be substantial, there should be a reasonable proposal from one party and an unequivocal acknowledgment by the other. On account of shopping at a supermarket, when a client places things in their shopping basket, they are making a proposal to buy those things. At the point when they continue to the checkout and pay for the things, the store acknowledges the deal. Both the client and the store have gone into a substantial agreement, which can be upheld if either party neglects to satisfy their commitments.

Enforcement of contract

The idea of thought is likewise basic in deciding the enforceability of a contract. Thought alludes to something of significant worth guaranteed by the two players as a feature of the understanding. In “Masters v Cameron”, it was demonstrated that thought should be adequate, yet it need not be satisfactory [13]. This implies that thought doesn't need to be of equivalent worth between the gatherings. For example, on the off chance that an individual proposes to sell their vehicle for $1,000 and another consent to get it, the thought is the cash traded for the vehicle, regardless of whether the vehicle's genuine worth is higher. If either party neglects to play out, the other can uphold the agreement and look for cures.

Contract conditions

Moreover, “Masters v Cameron” underscored that the conditions of a contract should be sure and adequately characterized. At the end of the day, the understanding should contain clear and unambiguous terms to be enforceable. For example, think about an agreement between an inhabitant and a landowner for private property. The understanding ought to obviously express the lease sum, length of the rent, and some other agreements. On the off chance that any key terms are left endless or indistinct, it could prompt an absence of enforceability.

Finally, “Masters v Cameron” featured the job of limit in agreement requirement. An agreement should be placed by parties who have the legitimate ability to do so. For instance, an agreement endorsed by a minor (younger than 18) is for the most part unenforceable as minors are considered to miss the mark on lawful ability to go into official agreements (Schrever et al. 2019). Nonetheless, there are special cases, for example, contracts for necessities like food, apparel, and haven.

Law-bound contract

All in all, the standards laid out in “Masters v Cameron” assume a crucial part in deciding the enforceability of agreements. Parties should have a serious expectation to be bound, there should be a reasonable proposition and acknowledgment, thought should be available, terms should be sure, and the gatherings should have the lawful ability to go into the contract. Applying these standards to introduce life models can assist people with understanding when an agreement might possibly be upheld [14]. It is fundamental to painstakingly consider these elements while going into any authoritative consent to guarantee that it holds lawful weight and safeguards the privileges and commitments of all gatherings included.

Bibliography

Journals

• Kharlie, Ahmad Tholabi and Achmad Cholil, ‘E-Court and E-Litigation: The New Face of Civil Court Practices in Indonesia’ [2020] repository.uinjkt.ac.id <https://repository.uinjkt.ac.id/dspace/handle/123456789/50829>
• Lysova, Alexandra et al, ‘A Qualitative Study of the Male Victims’ Experiences with the Criminal Justice Response to Intimate Partner Abuse in Four English-Speaking Countries’ (2020) 47(10) Criminal Justice and Behavior 1264
• McGill, Jena and Amy Salyzyn, ‘Judging by Numbers: Judicial Analytics, the Justice System and Its Stakeholders’ (2021) 44 Dalhousie Law Journal 249 <https://heinonline.org/HOL/LandingPage?handle=hein.journals/dalholwj44&div=14&id=&page=>
• Mejía, Luis E, ‘Judicial Review of Regulatory Decisions: Decoding the Contents of Appeals against Agencies in Spain and the United Kingdom’ [2020] Regulation & Governance
• Putra, Dedi, ‘A MODERN JUDICIAL SYSTEM in INDONESIA: LEGAL BREAKTHROUGH of E-COURT and E-LEGAL PROCEEDING’ (2020) 9(2) Jurnal Hukum dan Peradilan 275
• Santiadi, Kukuh, ‘EXPANDING ACCESS to JUSTICE through E-COURT in INDONESIA’ (2019) vol1(iss1) Prophetic Law Reviewie
• Shi, Changqing, Tania Sourdin and Bin Li, ‘The Smart Court - a New Pathway to Justice in China?’ (2021) 12 International Journal for Court Administration 1 <https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijca12&div=6&id=&page=>
• Tam, Tracy, Asha Rao and Joanne Hall, ‘The Good, the Bad and the Missing: A Narrative Review of Cyber-Security Implications for Australian Small Businesses’ (2021) 109 Computers & Security 102385 <https://www.sciencedirect.com/science/article/pii/S0167404821002091>
• Wallace, Anne and Kathy Laster, ‘Courts in Victoria, Australia, during COVID: Will Digital Innovation Stick?’ (2021) 12 International Journal for Court Administration 1 <https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijca12&div=20&id=&page=>
• Daley, Hannah, ‘Most Famous Court Cases in Australia’, Damien Greer Lawyers (20 March 2019) <https://damiengreer.com.au/most-famous-court-cases-in-australia/>
• Gorodovenko, V, O Bondar and L Udovyka, ‘Redirecting...’, heinonline.org (1 January 2021) <https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/iushum10&amp>

Books

• Chawinga, Winner Dominic et al, ‘Towards E?Judicial Services in Malawi: Implications for Justice Delivery’ (2019) 86(2) The Electronic Journal of Information Systems in Developing Countries
• Fach Gomez, Katia, ‘The Role of Mediation in International Commercial Disputes: Reflections on Some Technological, Ethical and Educational Challenges’ [2019] SSRN Electronic Journal
• Hutchinson, Jade et al, ‘Mobilizing Extremism Online: Comparing Australian and Canadian Right-Wing Extremist Groups on Facebook’ (2021) 2 Behavioral Sciences of Terrorism and Political Aggression 1

Online Articles

• Buo, Shadrack, ‘The Emerging Threats of Deepfake Attacks and Countermeasures’ [2020] The emerging threats of deepfake attacks and countermeasures. [15]<https://arxiv.org/ftp/arxiv/papers/2012/2012.07989.pdf>
• Kharlie, Ahmad Tholabi and Achmad Cholil, ‘E-Court and E-Litigation: The New Face of Civil Court Practices in Indonesia’ [2020] repository.uinjkt.ac.id <https://repository.uinjkt.ac.id/dspace/handle/123456789/50829>
• [1] Buo, Shadrack, ‘The Emerging Threats of Deepfake Attacks and Countermeasures’ [2020] The emerging threats of deepfake attacks and countermeasures.
• [2] Chawinga, Winner Dominic et al, ‘Towards E?Judicial Services in Malawi: Implications for Justice Delivery’ (2019) 86(2) The Electronic Journal of Information Systems in Developing Countries
• [3] Fach Gomez, Katia, ‘The Role of Mediation in International Commercial Disputes: Reflections on Some Technological, Ethical and Educational Challenges’ [2019] SSRN Electronic Journal
• [4] Chamberlain vs. Queen (1984)
• [5] Hutchinson, Jade et al, ‘Mobilizing Extremism Online: Comparing Australian and Canadian Right-Wing Extremist Groups on Facebook’ (2021) 2 Behavioral Sciences of Terrorism and Political Aggression 1
• [6] Kharlie, Ahmad Tholabi and Achmad Cholil, ‘E-Court and E-Litigation: The New Face of Civil Court Practices in Indonesia’ [2020] repository.uinjkt.ac.id <https://repository.uinjkt.ac.id/dspace/handle/123456789/50829>
• [7] Wallace, Anne and Kathy Laster, ‘Courts in Victoria, Australia, during COVID: Will Digital Innovation Stick?’ (2021) 12 International Journal for Court Administration 1 <https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijca12&div=20&id=&page=>
• [8] Lysova, Alexandra et al, ‘A Qualitative Study of the Male Victims’ Experiences with the Criminal Justice Response to Intimate Partner Abuse in Four English-Speaking Countries’ (2020) 47(10) Criminal Justice and Behavior 1264
• [9] McGill, Jena and Amy Salyzyn, ‘Judging by Numbers: Judicial Analytics, the Justice System and Its Stakeholders’ (2021) 44 Dalhousie Law Journal 249 <https://heinonline.org/HOL/LandingPage?handle=hein.journals/dalholwj44&div=14&id=&page=>
• [10] Mejía, Luis E, ‘Judicial Review of Regulatory Decisions: Decoding the Contents of Appeals against Agencies in Spain and the United Kingdom’ [2020] Regulation & Governance
• [11] Tam, Tracy, Asha Rao and Joanne Hall, ‘The Good, the Bad and the Missing: A Narrative Review of Cyber-Security Implications for Australian Small Businesses’ (2021) 109 Computers & Security 102385 <https://www.sciencedirect.com/science/article/pii/S0167404821002091>
• [12] Putra, Dedi, ‘A MODERN JUDICIAL SYSTEM in INDONESIA: LEGAL BREAKTHROUGH of E-COURT and E-LEGAL PROCEEDING’ (2020) 9(2) Jurnal Hukum dan Peradilan 275
• [13] Santiadi, Kukuh, ‘EXPANDING ACCESS to JUSTICE through E-COURT in INDONESIA’ (2019) vol1(iss1) Prophetic Law Reviewie
• [14] Shi, Changqing, Tania Sourdin and Bin Li, ‘The Smart Court - a New Pathway to Justice in China?’ (2021) 12 International Journal for Court Administration 1 <https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijca12&div=6&id=&page=>