Australian Commercial Law: Analysis of Legal Principles and Cases

This report provides an analysis of Australian Commercial Law, drawing upon the theories of Professor H.L.A. Hart and examining their relevance to the Australian legal system. The report explores Hart's three-part legal system, including the rule of recognition, rules of change, and rules of adjudication, and discusses their application within the Australian context. It highlights similarities between Hart's theories and the structure of the Australian legal system, including the division of powers and the influence of common law principles. Furthermore, the report includes a case study, Fulham Partners LLC v National Australia Bank Ltd, focusing on the issue of free consent in contract law. The analysis covers the essential elements of a valid contract and the importance of consent in contractual agreements. The report also discusses the adversarial system in Australia and identifies potential challenges. The report concludes by emphasizing the role of secondary rules of law and the application of Hart's principles within the Australian legal framework. This is a comprehensive analysis of key legal concepts and their application in the Australian context.

Running head: AUSTRALIAN COMMERCIAL LAW
Australian commercial law
Name of the student:
Name of the university:
Author note

1AUSTRALIAN COMMERCIAL LAW
Answer to part A
The subject matter of the paper is based on the Australian Legal system and the
theories of Professor H.L.A. Hart. A relation has been tried to make in between the
Australia’s legal features and the three part legal system of Prof. Hart. There are certain
similarities observed in the legal system of Australia regarding the Hart’s theory. Professor
Hart had divided the society into some parts of whom the tribal society is mentioned as the
primitive society.
The term law is used to denote the systematic approach to achieve the good livelihood
and maintained peace and justice within the sphere of a particular country or States. Many
scholars and researchers, for many years, tried to find out the appropriate theories of law and
set out legal principles for the development of the standard of law.
The present case is based on the tribal law and system maintained in the tribal society.
The word constitution has been stated under the case where it has been mentioned that all
the rules regarding the society has been written there. The tribal society is primitive in nature
and it is the common rule that every member of the society has to follow the rules regarding
the proper maintenance of the society.
Under the tribal society, there is no existence of state and therefore, the provisions of
the rules or law are quite rigid. There is no fair provision to change or amend the law in part
or completely. Therefore, by the changes of the generation, tribal law failed to change its
character. However, law helps to maintain a proper dignity in the society and helps to
identify the fair juridical system in it.
In the words of Professor Hart, it is important to abide by the law to avoid the
complexity and there should be no complication regarding the provision. He thought that a

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society will be lag behind if all the members of a society will not follow the legal principle
and therefore, it is important to let the people know about the provisions of law by verbal
communication.
Answer to part B
A society should be divided into three parts for the proper adjudication of the works.
The parts are administrative, legislative and judiciary. Powers should be divided into three
parts properly and there should not be any interference regarding the same. These three parts
have same importance to lead the society in a systematic way. In every country, there shall be
a good legal system so that the loopholes regarding the inner system of the country can be
avoided. The mentality of the lawmaker is reflected by the legal structure of a country and
therefore, strong legal structure helps to identify the growth of a State.
The Australian legal system is quite developed in nature and the nature of the law is
common in nature. The common law principles are derived its origin from the English law.
Australia was a colonial State under the Great Britain and therefore, the English law
vehemently attracts the legal structure of Australia. a division of power is observed in the
Australian society and the federal system is observed in Australia. There are six different
States present in Australia that are enjoying the self-governing power and the parliamentary
system and constitution are different in all these States.
There are certain loopholes present in the legal system of Australia. in Australia, an
adversarial system has been observed and this system is the main obstacle to drive the
business operation effectively. In the system, certain classes of Jury are appointed to resolve
the dispute by engaging their jurisprudential mind, all the decisions are to be taken by the
Jury, there is no chance to interfere, and for that the outcome is detrimental. Many a times, it

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has been seen that the decisions are not neutral in nature and that is the most threatening
matter regarding the legal system of any country.
It has been stated earlier that most of the part of the legal system of Australia has been
derived from the English law and therefore, certain similarities have been observed regarding
the Hart’s three parts legal system. Professor Hart had divided the law in two ways- primary
law and secondary law. In the provinces of Australia, the principles of the secondary law are
applicable.
Professor Hart was a legal philosopher and professor of jurisprudence at the
University of Oxford. Hart was the supporter of Jeremy Bentham and he believed on the
theory of the positive law theory. According to Hart, the law should not be backed by the
threats or command therefore he denies the versatility of the theories of John Austin. In his
famous book, Concept of Law, Hart had made an systematic approach regarding the legal
theories and suggested certain rules that a State should have to maintain for achieving the
goal properly. Hart believed that a State has to follow the secondary principle of law, as there
are many weak points present in the primary principle of law. The most common problems
that are to be observed in the primary rules are uncertainty, static situation and lack of
efficacy in the dispute resolution parts.
Professor Hart has prescribed three rules to avoid these problems and to regulate for
the proper adjudication of the society. These three rules are identified as the three part legal
system. These rules are Rule of recognition, Rules of change and Rules of adjudication. Rule
of recognition is a checking process by which the people will try to find out basis of the
primary rules. The rule of recognition is a test where the validity of the legal system can be
adjudged and it stands on the efficacy regarding the same. rule of recognition is considered as
one of the most common part of the analytical jurisprudential system. It has been pointed out

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by Hart that in the primary system, certain obligations are prescribed, where secondary rules
are denotes as a term to identify the creation or alteration of the primary rules. It has been
stated by Hart that the weak points of the primary rules can be avoided by the rule of
recognition. As per his opinion, in the primary legal system, there is some uncertainty take
place. The process of the rule of law can remove these uncertainties. Except this, in primary
rule of law, the growth regarding the development of legal rules is sloth in nature. The
principle of rule of change is an initiative to resolve this. The efficacy regarding the legal
system can be developed through the appropriate adjudication of the rule of law.
Under the Australian legal system, certain similarities can be observed regarding the
principles stated by Professor Hart. Professor Hart was the supporter of division of power. In
the legal system of Australia, the powers are divided into several parts and the society is also
divided into six States. The legal structure is not rigid in nature. Australian legal system is a
supporter of the secondary rule of law.
Answer to part C
Name of the case : Fulham Partners LLC v National Australia Bank Ltd
[2013]
Issue:
The case is based on the free consent theory regarding the commission of a contract. It
has been stated under the law of Contract that certain essentials are to be met to become a
valid contract. The main issue regarding the case is that whether a party to a contractual
agreement can pass over his rights and obligation to another without obtaining the consent
of the other party. Contractual relations are serious in nature as the interest of the parties are

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involved there and law regarding the Contract is made with a view to secure the interest of
the parties. Therefore, consent plays an important role regarding the contract.
Relevant rules:
The legal system of Australia follows the common law principle. The principle of
common law is based on the customs and judicial precedents and the role of the statutes are
quite ineffective in this case. The most important feature of the common rule or law is that
the structure of the law is based on the decisions of the judge.