Analysis of Legal Systems: Nepal and Australia

This paper analyzes the legal systems of Nepal and Australia, focusing on the rule of recognition, rule of change, and rule of adjudication. It compares the legal structures and highlights the differences between the two countries. The analysis also explores the impact of religious texts in Nepal's legal system and the influence of common law in Australia. The paper concludes by discussing the federal form of government in both countries.

Running head: BUSINESS LAW ASSIGNMENT
Business Law Assignment
Name of the Student
Name of the University
Author Note

1BUSINESS LAW ASSIGNMENT
Question 1
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 adjudication1. 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 positivism2. 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 recognition3 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 framework4. The Constitution of
1 Krygier, Martin. "The concept of law and social theory." In Legal Theory and the Social Sciences, pp. 3-28.
Routledge, 2017.
2 Tuori, Kaarlo. Critical legal positivism. Routledge, 2017.
3 Rutherglen, George. "The Rule of Recognition in Reconstruction: A Review of Secession on Trial: The
Treason Prosecution of Jefferson Davis." Va. L. Rev. Online 103 (2017): 72.
4 Sarre, Rick. "Recent legal developments in Australia." Australian & New Zealand Journal of Criminology 49,
no. 1 (2016): 152-156.

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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
change5. 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
5 Ronald, Dworkin. "The Model of Rules." In Theoretical and Empirical Studies of Rights, pp. 45-77.
Routledge, 2017.

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amended to remove that cause of disagreement. Such an amendment would be accompanied
by the passing of an Act by the state government.
Another rule of legal positivism6, 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 Nepal7 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
courts8. 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
6 Campbell, Tom D. The legal theory of ethical positivism. Routledge, 2016.
7 Letizia, C. "National Gods at the Court. Secularism and the judiciary in Nepal." (2016): 34-68.
8 Ogden, Luke. "The Remaking of the Courts: Less-Adversarial Practice and the Constitutional Role of the
Judiciary in Australia by Sarah Murray." (2014): 366.

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foundation in the religious texts of Hinduism. In both the countries, a federal form of
government exists.
Question 2
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 Law9 defines the term consumer in section 310. 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 consumer11. For the purpose of this
section, consumer would mean the same as is defined under section 312.
9 Competition And Consumer Act 2010
10 Coleman, Andrew, and Mark Bender. "The Significance of the Definition of “Consumer” in Consumer
Protection: A Comparison between the Australian Consumer Law (Australia)." PROCEEDINGS: Advances in
International Interdisciplinary Business and Economics Volume 2 (2014).
11 Latimer, Paul. "Protecting consumers from unfair contract terms: Australian comparisons." (2016).
12 Holden, A. C. L., and H. Spallek. "How compliant are dental practice Facebook pages with Australian health
care advertising regulations? A Netnographic review." Australian dental journal 63, no. 1 (2018): 109-117.

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In the case of ACCC v TPG Internet Pty Ltd.13, 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.
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
13 ACCC v TPG Internet Pty Ltd [2013] HCA 54

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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 10614, 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 nature15. 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
14 ACCC v Valve Corporation (No 3) [2016] FCA 106
15 Kariyawasam, Kanchana, and Shaun Wigley. "Online shopping, misleading advertising and consumer
protection." Information & Communications Technology Law 26, no. 2 (2017): 73-89.

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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
laws16 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.
Conclusion
Sandra has a cause of action against the jjNet, the internet service provider, to claim
damages.
16 Laying, Loose. "DEN 685." (2016).