Corporation and Business Law

The article discusses the Australian Constitution and the doctrine of separation of powers. It also explains the Law of Contract in Australia and its application in a given situation. The first part of the article explains the distribution of powers between the three organs of the Government, namely, the Parliament, Executive and Judiciary in the Governance process. The second part of the article explains the issue, rule, application, and conclusion methodology of the Law of Contract in Australia.

Running head: CORPORATION AND BUSINESS LAW
Corporation and Business Law
Name of the Student
Name of the University
Author Note

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Part A
The Constitution of Australia possesses the utmost authority over any other Laws in
Australia. The Laws set out in the Australian Constitution prevails over any other Laws
existing in the commonwealth. In the first three chapters of the Australian Constitution, the
laws relating to the separate organs of the Government have been provided. It contains the
roles that are assigned to the three organs of the Government, namely, the Parliament,
Executive and Judiciary in the Governance process. The distribution of powers between the
three sections of the Government is referred to as the Separation of Powers.
The elements of the Government of Australia has been divided into three sections by
virtue of the Constitution of Australia and the doctrine of separation of powers. The three
elements being the legislature, executive and the judiciary. The legislature is entrusted with
the power to enact laws, which will prevail over the country. The executive is empowered to
effect the implementation of the law. The judiciary is entrusted with the interpretation of the
laws. This doctrine of separation of powers is considered to be the basis of every efficient
government. However, a strict adherence to the doctrine of separation of powers is not
followed in Australia. The separation of powers in Australia is an admixture of the basic
concepts of democracy enumerated by the Westminster system, the version of separation of
powers adhered to in the United States and the doctrine related to responsible Government.
The doctrine of the separation of powers has been a controversial issue in Australia. It raises
concerns regarding the vesting of power in the political system of Australia.
The doctrine of separation of powers makes an assumption that the powers vested in the
different sections of the Government does not overlap. However, in Australia there exists
certain powers common to the three organs of the Government. Australia has a little

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separation between powers of the executive and legislature. The following paragraphs would
discuss the shortcomings arising from a strict adherence to the separation of powers.
A shortcoming regarding the strict adherence to the doctrine of separation of powers has
arisen in the case of Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v
Dignan1 where the High Court of Australia opined that a strict adherence to the doctrine of
separation of powers between these two organs is impractical and it was a re-affirmation to
the constitutional provisions relating to the same.
The Constitution of Australia begins with three chapters namely, the Parliament, the
Executive and the Judicature. These chapters has the effect of vesting the power regarding the
commonwealth upon the appropriate bodies or individuals.
However, section 64, 62 and 44 of the Constitution contains provisions effecting a
responsible government. In accordance with these sections, the executive and legislature of
Australia are considered to be effectively united. This poses to be an shortcoming in the strict
adherence to the separation of powers. The strict compliance to the doctrine of separation of
powers is possible only in theory. In reality, an overlap is evitable by the process of checks
and balances. Section 64 of the Australian Constitution requires an adherence to the concept
relating to Responsible Government.
Another shortcoming relating to the doctrine of separation of powers has evolved in the
case of Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan, where the
Australian High Court rendered it impossible to follow the strict compliance to the separation
of powers and the legislative and the executive wing of the Government. It was discovered
that a delegation of legislative powers can be effected to the executive and hence it may result
in the validation of the delegated legislation. However, the High Court of Australia prefers a
1 Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan Informant
[1931] HCA 34; 46 CLR 73; (1932) ALR 22

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strict separation of judicial power. An NSW statute was rendered invalid as it proposes to
vest non-judicial functions to courts in the case of Kable v Director of Public Prosecutions
(NSW)2. In the case of Territory Courts in Ebner v Official Trustee in Bankruptcy (2000)3, it
was rendered that the State Court cannot be assigned with powers that interferes with its
independence as protected by the Constitution.
Australia follows a Parliamentary form of Government. In this form of Government, the
Ministers, who are generally vested with the executive powers, take part in the process of
legislation. This presents an overlap of the legislative and the executive powers. The
legislature and executive not only overlaps physically, but some of the powers vested in the
legislature are allocated to the executive. Such powers include preparation of regulations in
aiding an Act passed by the Parliament. In a similar manner, the legislature also has the
power to repeal or restrict some of the powers exercised by the executive by the enactment of
new laws effecting that. However, such power is enjoyed by the legislature subject to judicial
review.
However, the Australian Judiciary enjoys a strict adherence to the doctrine of separation of
powers. The Judiciary in Australia enjoys an independence in exercising it powers. In the
case of New South Wales v Commonwealth (The Wheat Case)4, it was decided by the High
Court that a strict separation of the powers exercised by the Judiciary is a fundamental
principle laid down in the Constitution of Australia. This principle also extends to tribunals
and the commissions formed by the Parliament. The rule established in this case was also
applied in the case of Waterside Workers' Federation of Australia v J W Alexander Ltd5. In
this case a distinction was drawn between the judicial and arbitral functions for the purpose
of decision making. The reference to the concept of separation of powers was again made by
2 Kable v Director of Public Prosecutions (NSW) [2013] HCA 26, (2013) 252 CLR 118.
3 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
4 New South Wales v Commonwealth (Wheat case) [1915] HCA 17
5 Waterside Workers' Federation of Australia v J W Alexander Ltd [1918] HCA 56, (1918) 25 CLR 434

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the court in the case of R v Kirby6. The executive and legislative organs of the Government
of Australia has some of the functions overlapping with each other, but the Australian
Judiciary was conferred with an independence in exercising its powers.
Part B
In this part of the assignment, firstly the issue relating to the given situation will be
identified. Secondly, the rules relating to the situation will be enumerated. Thirdly, the rules
enumerated will be applied to the situation. Lastly, a conclusion will be provided depending
upon the previous discussion. All of these will be done by following the issue, rule,
application, conclusion methodology.
Issue
Whether any is contract formed between the Events Management Ltd and Rigby
Corporate Function Planners Pty Ltd regarding the acquisition of the Rigby Corporate
Function Planners.
Whether a right to legal action has been incurred to the Events Management against the
Rigby Corporate Function Planners Pty Ltd.
Rule
The Law of Contract followed in Australia is based on the principles of common law. The
four elements of a valid contract are offer, acceptance, consideration and intention to create
legal obligation.
The first essential element of a valid contract is offer made by one party to the other.
Offer implies a statement showing the willingness of a person to enter into a contract with
certain terms with an intention to bind the other legally. An offer may be communicated. The
6 R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10, (1956) 94 CLR 254

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mode of communication include verbal communication, email, fax, conduct effecting the
same or a newspaper advertisement.
The second element of a valid contract is the acceptance of the offer. The acceptance must
also be communicated. It must be unconditional. The terms of the agreement must be entered
into by both the parties to the contract in the same sense7.
The third element of a valid contract is the consideration. Every contract entered into must
be backed by a consideration for both the parties. The consideration does not need to be
adequate. The mere presence of it will suffice.
The fourth element of creating a valid contract is that the parties must intend to create a
legal obligation between them. In the case of Masters v Cameron (1954) 91 CLR 3538, the
court had categorized three forms of contracts. For the purpose of this scenario, only two of
them are relevant. The second one implies a contract, where all the terms have been agreed
upon and has no intention of departing from the same, but has made the performance of few
of such terms to be depended upon the execution of a formal instrument effecting the
contract. The third case implies a contract to be formed only upon the execution of a formal
instrument effecting the contract.
A contract has legal enforceability under common law. The parties involved in a contract
are obligated to perform their contractual obligations. In case of failure of the parties to fulfil
the obligations arising from contract, legal consequences will be incurred.
A term included in a contract is said to be essential when the contract is wholly depended
upon that condition. An essential condition refers to a condition that forms the basic essence
of the contract and in the absence of which the contract would not have formed. The same
7 Cartwright, John. Contract law: An introduction to the English law of contract for the civil lawyer.
Bloomsbury Publishing, 2016.
8 Masters v Cameron (1954) 91 CLR 353

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can be explained with the case of Tramways Advertising Pty Limited v Luna Park (NSW) Pty
Limited9.
Application
In the present situation, the Events Management Ltd. has made an agreement with the
Rigby Corporate Function Planners Pty Ltd for the acquisition of the Rigby Corporate
Function Planners Pty Ltd. The agreement was entered into by the parties through a series of
emails. According to the contract law, the first requirement needed to form a contract is the
agreement consisting of an offer and the acceptance of the offer. In this case, an agreement
was made between the parties through the emails for the transfer of the Rigby Corporate
Function Planners Pty Ltd.
Another requirement needed for the formation of a valid contract is the consideration. In
this present situation, the acquisition was agreed upon for a purchase price of $750,000.
Therefore, the transfer of the Rigby Corporate Function Planners Pty Ltd is for a
consideration of $750,000. Therefore, the requirement of consideration is present in the
situation.
However, though there was no agreement being signed by the parties effecting the same,
but a valid contract does not imply the signing of a contract. Moreover, the agreement
achieved via emails also implies a contract. However, applying the rules laid down in the
case of Masters v Cameron (1954) 91 CLR 353, it can be stated that when the agreement
arrived upon is depending on the execution of a formal instrument, the contract will become
valid only upon the execution of that instrument and the agreement will not have the effect of
a valid contract until a formal instrument has been executed.
9 Tramways Advertising Pty Ltd v Luna Park (N.S.W.) Ltd 1938 S.R. (N.S.W.) 632

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Again, the Events Management Ltd has made certain expenditure in furtherance of the
contract for such acquisitions. This incurs a right regarding the contract. The Events
Management Ltd has incurred a right under the contract. This assigns a right to Events
Management Ltd to enforce the terms of the contract. But certain terms of the contract were
not agreed upon and the contract was supposed to be executed by a formal document. Hence,
applying the rules laid down in the case of Masters v Cameron (1954) 91 CLR 353, as certain
terms of the contract were depending upon the execution of a formal instrument effecting the
contract, the performance of the same cannot be bound unless the formal instruments are
executed.
Conclusion
No contract is formed between the Events Management Ltd and Rigby Corporate Function
Planners Pty Ltd regarding the acquisition of the Rigby Corporate Function Planners.
No right to legal action has been incurred to the Events Management against the Rigby
Corporate Function Planners Pty Ltd.

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Reference
[1931] HCA 34; 46 CLR 73; (1932) ALR 22
Cartwright, John. Contract law: An introduction to the English law of contract for the civil
lawyer. Bloomsbury Publishing, 2016.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Kable v Director of Public Prosecutions (NSW) [2013] HCA 26, (2013) 252 CLR 118.
Masters v Cameron (1954) 91 CLR 353
New South Wales v Commonwealth (Wheat case) [1915] HCA 17
R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10, (1956) 94 CLR 254
Tramways Advertising Pty Ltd v Luna Park (N.S.W.) Ltd 1938 S.R. (N.S.W.) 632
Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan Informant
Waterside Workers' Federation of Australia v J W Alexander Ltd [1918] HCA 56, (1918) 25
CLR 434