College Name: 2017 LAWS20058 Australian Commercial Law Report Analysis

This report provides a comprehensive analysis of Australian Commercial Law, beginning with an examination of HLA Hart's philosophy and its application to the Australian legal system. It explores the three-part legal system proposed by Hart, including rules of recognition, change, and adjudication, and how these are reflected in the structure and function of Australian law. The report then delves into the case of Johnson v Buttress, focusing on the legal issue of undue influence within the context of contract law. The facts, issue, rule, application, and conclusion of the case are detailed, demonstrating the importance of genuine consent in contract formation. The report concludes by emphasizing the implications of the case and the remedies available, providing a clear understanding of the legal principles involved and their practical application. The report covers various aspects of Australian law, including the constitution, separation of powers, and the classification of laws, offering a thorough overview of the legal landscape.

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Contents
Part A...............................................................................................................................................3
Part B...............................................................................................................................................4
Part C...............................................................................................................................................7
Facts.............................................................................................................................................7
Issue.............................................................................................................................................7
Rule..............................................................................................................................................7
Application..................................................................................................................................9
Conclusion and Remedies............................................................................................................9
Part D.............................................................................................................................................10
Issue...........................................................................................................................................10
Rule............................................................................................................................................10
Application................................................................................................................................12
Conclusion.................................................................................................................................12
Bibliography..................................................................................................................................13
A. Articles/ Books/ Reports.....................................................................................................13
B. Cases...................................................................................................................................14
C. Legislations.........................................................................................................................14
A. Others..................................................................................................................................15

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Part A
HLA is a leading philosopher, particularly in the field of law and various legal systems were
evaluated him, following which, certain key points were highlighted which, in his view, were
required for established an efficient legal system. Any legal system, at its core, has the
constitution, which provides the guidance to the entire legal system1. There are certain
conventions which are applicable on the legal systems and these are adhered to by the people, in
addition to the core, i.e., the constitution. In any constitution, there is a separation of powers,
where the roles are categorized on the basis of legislation, judiciary and executive and there is a
clarity and demarcation between which role is to be performed by which department2.
The legislation is such a body which has the power of making the law. The legislative branch has
different acts, statutory instruments, regulations, rules and other, which have to be strictly
adhered by the ones, on which it is applicable. The executive branch has the responsibility of
administering law, which has been drawn by the legislative branch. The Ministers of the
government departments, particularly the ones who head these departments, have to make certain
that there is a strict adherence of the laws. The judiciary is the third branch and it has the power
of interpreting the law. The judiciary is responsible for making decisions on the applicability or
the non-applicability of the legislative instrument. Where, any violation is found, the relevant
remedy or punishment, based on the circumstances and the parties involved, has to be awarded3.
The tribe formed in the past had a constitution which was properly adopted. Any new person
who becomes the member of the tribe has to be made aware about the analysis of legal rules by
Hart. Hence, there would be a need to explain them about the constitution and the separation of
powers. The boundaries of each of these branches and their roles would also have to be clarified
to them.
1 Luís Duarte d'Almeida, James Edwards and Andrea Dolcetti, Reading HLA Hart's 'The Concept of Law' (A&C
Black, 2014)
2 Richard Bellamy, The Rule of Law and the Separation of Powers (Routledge, 2017)
3 HLA Hart, Joseph Raz and Penelope A. Bulloch, The Concept of Law (Oxford University Press, 3rd ed, 2012)

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Part B
The legal system of Australia has its applicability on the lives of people and the businesses which
are operated by them. There is a need for this system to be efficient, along with being accepted
across the nation. For this, the Australian legal system needs to have certain features, which can
be drawn from the 3-part legal system given by HLA Hart. The legal system proposed by Hart
has three distinctive secondary rules; the first being recognition, the second being change, and
the third being adjudication4.
The recognition rules drafted by Hart denote that there is a need to restrict any ambiguity in the
rudiments of law. The raison d'être behind this is that the rules provide the manner through
which the authority is given to the other rules and are provided the validity. So, an act which has
been approved and brought into force by the Australian Parliament is an example of rules of
recognition as the validity is provided through the Australian Parliament. The other aspect of the
3-part legal system given by Hart is the rules of change. These rules help in resolving the
primary rules’ dormant character. The way through which the rules can be amended, repealed,
added, replaced, amended or changed in any other aspect are provided under the rules of change.
The rules of recognition usually include the change provisions5.
The last part in this three part system is the rules of adjudication. Through these rules, the
shortfalls are highlighted. The bodies get the power to make decision with authority, in the
matter of the requirement of amendment or depletion of the primary rules, along with providing
the adjudication seeking procedure. In order for any system to succeed, these rules have to be
followed in both letter and spirit, by any and all individuals6.
The three part legal system given by Hart is adequately applicable on the Australian legal
system. In Australia, the legal system is based on the constitution, which is strictly adhered in the
nation. And as the Australian legal system has its roots in English system, certain conventions
apply in the nation. There is an applicability of the rules of recognition and the authority of law
is clear and undisputed. So, the judges have the power of making the common law, which is
4 M.C. Redondo, Reasons for Action and the Law (Springer Science & Business Media, 2013)
5 John Finnis, Natural Law and Natural Rights (Oxford University Press, 2nd ed, 2011)
6 Cesare PR Romano, Karen J Alter and Yuval Shany, The Oxford Handbook of International Adjudication (Oxford
University Press, 2014)

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applicable on the courts. However, this is valid till the time it is not proved opposite to the
legislation which has been drawn through the Australian parliament. There is a properly defining
of the scope of powers which the Commonwealth has through the Australian Constitution.
Further, there is also an establishment of the federation of states, which are famously referred to
as the Commonwealth of Australia7.
The rules of change are also applicable in the Australian legal system as the modifications in the
Australian Constitution can be brought, if the given procedure is properly followed. There is a
need of referendum passed by the House of Parliaments and that too, through the majority of
members. This has to be coupled with the majority votes in most of the states, along with the
nationwide majority votes. There is also a separation of powers and division of law. The role of
each branch has been clearly provided, which includes the role of judiciary as being defined as
having the responsibility of adjudication. So, the scope of the judiciary has been defined through
such an act8.
The Australian laws have classifications of law in order to provide clarity. Hence, there is a
bifurcation of the law on the basis of common law which is drawn by the judges and the statutory
law which is drawn by the Parliament. Another aspect on the basis of which the law is bifurcated
is the nature of the incident, which can result in applicability of criminal or civil law. The
criminal law incidents include murder and manslaughter, where on the basis of criminal code, the
punishment is awarded. In such cases, there is a need to show the presence of mens rea, i.e.,
guilty mind and the crime has to be proved without any doubt for the punishment to be awarded.
The civil law has cases where the incident is not much serious, for instance, the tortious acts
done under negligence9.
The law is also divided into public and private law also, and substantive and procedural law.
Such demarcations are done to so as to enhance the efficiency in dealing with different matters.
The division of law and the separation of powers bring efficiency and even specialization in the
7 Nicholas Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian
Constitution (Cambridge University Press, 2009)
8 Roger Masterman, The Separation of Powers in the Contemporary Constitution: Judicial Competence and
Independence in the United Kingdom (Cambridge University Press, 2010)
9 Linda E. Carter and Fausto Pocar, International Criminal Procedure: The Interface of Civil Law and Common Law
Legal Systems (Edward Elgar, 2013)

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different aspects and fields of law10. Hence, the three part legal system is crucial for plotting the
legal system of the nation, and has resulted in the system being widely accepted.
Part C
Facts
Johnson v Buttress11 is a case revolving around the undue influence, which is one of the factors
which results in the consent being not genuine. In this case, the father of the plaintiff was an old
man who was also illiterate and he had relied upon the defendant for helping him in his routine
work. Buttress had, time and again, expressed his resentment towards his own family and he had
written different wills where he had left nothing for his family. Instead, these wills contained that
all of his property had to be given to those with whom, he was spending his current time. The
land was transferred by him to the defendant as being a gift for his services. At different
instances, Buttress had been asked by his attorney if he was sure of the decision which he had
made. As Buttress had been happy with the defendant he was happy to give the property to the
defendant as a gift and to show that he appreciated her help. Upon the death of Buttress, the son
of Buttress made an argument that the house was given away under undue influence12.
Issue
The legal issue here was whether there was a presence of undue influence in this case, or not?
Rule
A contract denotes the making of promise between two or more parties, where one side promises
that a particular thing would be done and the other side promises that the value of consideration
would be paid13. Through the formation of a contract, a binding relationship is formed between
the parties involved in the contract. In order to form any contract, there is a need to have certain
10 John Carvan, Understanding the Australian Legal System (Lawbook Company, 2009)
11 (1936) 56 CLR 113
12 Jade, Johnson v Buttress (2017) <https://jade.io/j/?a=outline&id=63883>
13 Ewan McKendrick, Contract Law (Pearson Education Limited, 11th ed, 2015)

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key requisites, which include the offer, the acceptance, the consideration, genuine consent,
capacity and intent14.
Genuine consent is one of the key requirements for forming a contract and it shows that the
parties have freely consented to the contract and have free will while entering into the contract.
In case genuine consent is not found, a lawfully binding contract cannot be formed. There are
different issues which can result in the genuine consent not being obtained in a particular matter.
This includes the factors like misrepresentation, unconscionability, duress, mistake, and undue
influence.
Undue influence takes place when there is an inequality in the power which the contracting
parties have due to which, the weaker party enters into a contract with the party which is
dominant15. The undue influence does not always result in a remedy being awarded. However, in
such cases where it can be established that the weaker party had influence of the dominating
party and which can be deemed as undue, in such cases, the option is given to the weaker party,
to rescind the contract16.
Undue influence can take place in two different manners, i.e., express undue influence, and the
presumed undue influence. In cases where the dominating party acts in a manner which deprives
the weaker party of the free will, it is express undue influence, and in some parts, it overlaps with
duress17. Where due to the presence of the relationship between the two parties, the dominating
party is able to influence the weaker party and while entering the contract, there had been some
undue aspect, it is the case of presumed undue influence18.
Application
In order to prove that the transaction has an actual influence of the defendant over the father of
the plaintiff, the facts have to prove this. In this case Buttress could not write or read, even his
own name and was completely dependent on the other person for his living. Each and every
14 Catherine Elliott and Frances Quinn, Contract Law (Pearson Education Limited, 9th ed, 2013)
15 Elizabeth Macdonald and Ruth Atkins, Koffman & Macdonald's Law of Contract (Oxford University Press, 8th ed,
2014)
16 Paul S Davies, JC Smith's the Law of Contract (Oxford University Press 2016)
17 Australian Contract Law, Undue Influence (2010) <https://www.australiancontractlaw.com/law/avoidance-
undue.html>
18 Neil Andrews, Contract Law (Cambridge University Press, 2nd ed, 2015)

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thing by him had to be done with the help of another. The father was a highly excitable, mentally
unstable and very stupid person in words of the witnesses. And so, the transfer of the property to
the defendant was highly improvident. It was very clear that the father was easily moved to
shouting and gesticulation19.
The undue influence in this case is present due to the relationship between the dominant party,
which is the defendant, by being the carer of the patient, and the weaker party, which is the
father of the plaintiff. Due to this relationship between the parties and the undue influence of the
dominant party had traces of presence over the weaker party, there is a need to set aside the
transfer of property. Buttress had clearly placed his confidence and trust over the defendant and
had also relied upon her advice. This advice had certain aspect of undue influence and so, there
is a need to uphold the contentions made by the plaintiff in this case.
Conclusion and Remedies
On the basis of discussion which has been carried above, the transfer of property would be set
aside as there is an antecedent relationship in between the defendant and Buttress. Even though it
cannot be proved directly that there was a presence of undue influence in a direct manner, the
condition of Buttress and the relationship of him and the defendant, results in the presence of
undue influence. The court, owing to these reasons, did not allow the transfer of property to the
defendant.
Part D
Issue
The key issue in this case relates to the termination of contract by Betty and the presence of the
other options with Betty.
Rule
When a contract is discharged, the contract is ended and any and all the responsibilities and
duties attached through the particular contract are brought to an end. There are different manners
19 Australian Contract Law, Johnson v Buttress (2013) <https://www.australiancontractlaw.com/cases/johnson.html>

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in which a contract can be discharged and the obligations contained through such contract are
ended. The ways of discharging the contract include breach, agreement, performance and
frustration. The discharge of contract through agreement involves an amicable decision by the
parties for bringing the contract to an end and to discharge each contractual party from the
ensuing obligations20.
There is also a mode of discharging the contract through frustration. In the discharge of contract
by frustration, the contract becomes such that it cannot be performed or the contract’s
commercial purpose is deprived to the parties, without any kind of fault of the other party. Upon
the frustration of a contract, none of the parties have the right of making a claim of breach of
contract21. Taylor v Caldwell22 is a leading case which proves that the contract is frustrated and
ultimately discharged. In this case the venue of the concert was the music hall which was
destroyed in an accidental fire. And upon this happening, the claimant initiated a claim of the
breach of contract. Though, the actions of the claimant failed before the competent court. This
was because the court held that after the fire, the contract was impossible to be performed.
The contract can be discharged through a breach also in such cases where one of the parties fails
to undertake their promised obligation. When such takes place, the contract is ended and the non-
breaching party gets the option of claiming damages and even repudiating the contract. Lastly,
the contract can be discharged by performance. The contract is performed when the terms set out
under the contract are fulfilled. There can be, at times, a partial performance of the contract. In
this form of discharge of contract, the contracting parties agree upon the performance of the
contract and the attempts to fulfill the contract are continued. Though, if the other party does not
accept the performance of the contract, the attempt making party (towards the fulfillment of the
contract) is discharged from any obligation for the contract and for the damages for non-
acceptance, the non-acceptance party is held liable23.
Sumpter v Hedges24 is a case where the parties reached an agreement that the two house and the
stables had to be built for the defendant and a price of £565 had to be paid on completion. The
stated promise was started to be performed but due to the lack of money. This led to the
20 Jill Poole, Casebook on Contract Law (Oxford University Press 2016)
21 Linda Mulcahy, Contract Law in Perspective (Routledge, 5th ed, 2008)
22 (1863) 3 B & S 826
23 Michael Furmston and G.J. Tolhurst, Contract Formation: Law and Practice (Oxford University Press, 2010)
24 (1898) 1 QB 673

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defendant finishing the remaining work on his own part and the claimant made an application for
the payment for the partial work which was done by him, which was a sum of £333. It was stated
by the claimant that the partial performance was accepting by finishing the work himself, by the
defendant. The court denied the claims of the claimant as it was held that the defendant had no
other option.
Application
Ram, as per the fact so the case, could not complete his work and so, the contract is not
discharged through performance. The other option is claiming breach of contract, which is not
possible as Ram could not finish the work owing to force majure. So, there is a need for the
contract to be discharged through frustration. Applying the case of Taylor v Caldwell, the
contract could not be performed due to the frustration of the contract. There is another option
with Betty to accept the partial performance of the contract.
Conclusion
To conclude, Betty cannot make a claim of breach of contract and even if she does so, it would
not be successful. The option which is available with Betty is to discharge the contract through
frustration or partial performance of contract.

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Bibliography
A. Articles/ Books/ Reports
Andrews N, Contract Law (Cambridge University Press, 2nd ed, 2015)
Aroney N, The Constitution of a Federal Commonwealth: The Making and Meaning of the
Australian Constitution (Cambridge University Press, 2009)
Bellamy R, The Rule of Law and the Separation of Powers (Routledge, 2017)
Carter LE, and Pocar F, International Criminal Procedure: The Interface of Civil Law and
Common Law Legal Systems (Edward Elgar, 2013)
Carvan J, Understanding the Australian Legal System (Lawbook Company, 2009)
d'Almeida LD, Edwards J, and Dolcetti A, Reading HLA Hart's 'The Concept of Law' (A&C
Black, 2014)
Davies PS, JC Smith's the Law of Contract (Oxford University Press, 2016)
Elliott C, and Quinn F, Contract Law (Pearson Education Limited, 9th ed, 2013)
Finnis J, Natural Law and Natural Rights (Oxford University Press, 2nd ed, 2011)
Furmston M, and Tolhurst GJ, Contract Formation: Law and Practice (Oxford University Press,
2010)
Hart HLA, Raz J, and Bulloch PA, The Concept of Law (Oxford University Press, 3rd ed, 2012)
Macdonald E, and Atkins R, Koffman & Macdonald's Law of Contract (Oxford University Press,
8th ed, 2014)
Masterman R, The Separation of Powers in the Contemporary Constitution: Judicial
Competence and Independence in the United Kingdom (Cambridge University Press, 2010)
McKendrick E, Contract Law (Pearson Education Limited, 11th ed, 2015)

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Mulcahy L, Contract Law in Perspective (Routledge, 5th ed, 2008)
Poole J, Casebook on Contract Law (Oxford University Press, 2016)
Redondo MC, Reasons for Action and the Law (Springer Science & Business Media, 2013)
Romano CSPR, Alter KJ, and Shany Y, The Oxford Handbook of International Adjudication
(Oxford University Press, 2014)
B. Cases
Johnson v Buttress (1936) 56 CLR 113
Sumpter v Hedges (1898) 1 QB 673
Taylor v Caldwell (1863) 3 B & S 826
C. Legislations
Contract Law
D. Others
Australian Contract Law, Johnson v Buttress (2013)
<https://www.australiancontractlaw.com/cases/johnson.html>
Australian Contract Law, Undue Influence (2010)
<https://www.australiancontractlaw.com/law/avoidance-undue.html>
Jade, Johnson v Buttress (2017) <https://jade.io/j/?a=outline&id=63883>