Contract in such Australian cases

According to Common Law System, Contract is made from agreement, intention and consideration. Agreement itself is resulted from offer and acceptance which imposes legal rights and obligations between the parties in which the rights and the obligation will be protected by the courts, while intention itself comes from the parties that has to affect their legal relationship and consideration itself will be enforced to the parties as a legal binding. (Vermeesch and Lindgren, Business Law of Australia 10th Ed., Butterworths, Australia, 2001. p.47)


Carlill v. Carbolic Smoke Ball Company [1893] showed the facts that there was:

‘  An offer

There are three facts that show an offer:

  • Lindley, L.J. stated that this is advertisement is an offer to pay 100 to anybody who will perform these conditions is the acceptance of the offer.
  • Bowen L.J. argued that the advertisement is written colloquial and popular language that means it is easy to public understandably. The advertisement stated that 100 will be paid to any person who shall contract the increasing epidemic after having used the carbolic smoke ball three times daily for two weeks.
  • This offer was purposed to whole the world including person.


‘  Acceptance

There are two facts that show acceptance:

  1. Bowen, L.J. revealed that notification of acceptance is required for the benefit of the person who makes the offer because:
  • Offeror may walve implicitly the right of notification.
  • Acceptance is directed expressly pr impliedly to the offeror.
  1. Lindley stated that:
  • Acceptance by conduct is the performance of the conditions of the offeror.
  • The person who makes the offer shows by his language and from the nature of the transaction that he does not expect and does not require notice of the acceptance apart from notice the performance.

‘  Intention to be legally bound

There are two facts that show intention to legally bound:

  1. Lindley, L.J. stated that the company already has deposited its money 1000 to the Alliance Bank in order to convince the public or as evidence to the public that they will be paid if they get these conditions or in other word, the company has shew its sincerity to pay it.
  2. Bowen, L.J. stated that the advertisement uses clear language that anybody who get these condition such as cold or influenza after purchasing and using it will be paid 100.


‘  Consideration

In terms of consideration, in this case it can be found some consideration:

v  Lindley, L.J. argued that the consideration could be drawn:

ñ  Directly beneficial to defendant such as: the increasing in sales production that caused by the confidence of the public to use this product.

ñ  There is ample consideration for the promise.

v  Bowen, L.J. stated that the inconvenience of one party by using the smoking ball was enough to create a consideration and also the defendant received an indirectly benefit from this user because of promoting their sale.



The distinctive of the Australia federal system:

v  The 3 arms of Australia government are segregated into three arms; Executive, Legislature and Judicature.

v  There is powers distribution from central government to state governments (6 states) and both of them have parallel systems of government in which the states get the rest of power to express and residual powers from the Federal government.

v   The Australian federal system is a constitutional monarchy because until now the Australia’s head of state is still Queen Elizabeth II that embodied by governor-general as her representative (s.61 constitution).


The differences between a unitary system of government and the Australian federal system are:

v  A unitary system of government, like the United Kingdom, is one system of government for the whole countries as the implementation of concept of centralized government. Whilst, the federal system is divided into federal and state government that embodies one system as the implementation of the separation powers and enacts to whole Australia.

v  A unitary system of government, like the United Kingdom, there is no states and written constitution, whilst the Australian federal system has written constitution and there is distribution of powers from federal government to states government in order to avoid the concept of centralized theory.


The similarities and differences of the Australian federation model with those of the USA and Canada are:

  1. The similarities of them:

v  There is division of legislative powers amongst them.

  1. The differences of them:

v  In Canada, the federal get the residual power from the states, whilst Australia and the USA get the rest of power from the federal government.

v  Ministers in Australia and Canada are responsible to their parliament, whilst, ministers in the USA have to be responsible to the president because the president holds office and cabinet.

v  In US, president is not necessary to come from the same political party, whilst in Australia president has to come from the same party.

v  In US the president’s election is not associated with the congressional elections, whilst, in Australia the prime minister’s election always is associated with the congressional elections.


The heads of legislative powers

The heads of powers means exclusive and concurrent power but if there is inconsistency of law between states government and the commonwealth, the commonwealth will prevail (s.109 constitution). The heads of power can be found in s.51 concurrent powers and S.52 about exclusive powers.


The separation of powers in Australia

Is embodied by the arms of government which each arm has its own and distinctive functions as well as each government should not exercise function another organ. For example, legislature has function to make laws, executive has function to administer the law to enacted by the parliament and the judicature has function to interpret the laws made by the parliament as legal officers. However, in Australia this doctrine is not strictly enacted because there is a connection between legislative and executive (s.64 constitution)


s. 109 Constitution

It means that if a state government wants to make laws and it has inconsistency with the commonwealth, so the state government laws will invalid because the commonwealth laws  will applied and in terms of conflict of law both of them high court can interpret the laws to convince all parties.



Katsuno v the Queen [1999] HCA 50 (30 September 1999)

The title: (the Nature of the proceedings) is Katsuno v the Queen. This case is an appeal case, which held in the High Court of Australia in which this case is criminal case because there is the Queen (Regina) as one of the parties. The Parties are Katsuno as appellant and the Queen as respondent.


The catchwords:

The purposes of the catchwords are;

(i)     to look at the references of the case (summarize different aspects of the case),

(ii)   to let you know what the case is all about,

(iii) to look at the main argument of the case that will be argue or become the reason of the argument,

(iv) an overview of the case of Katsuno and the Queen.

The catchwords’ authority in this case does not have binding authority.


The court position in the court system of Australia: in this case would held on the High Court of Australia. The High Court is the highest court in Australia for both the Federal and the States judicial structures. Its original jurisdiction is set out in chapter III ss75-76 of the Constitution. This jurisdiction relates to all subjects matters like:

(a)    arising under treaties

(b)   affecting consuls or other representatives of other countries, etc (s.75); or

(c)    arising under the constitution (interpretation)

(d)   arising under any laws made by parliament, etc (s.76)

Also, the judgment of High Court for all cases is final and conclusive.


The two principle issues that the court had to decide:

Based on this case, the principles are:

(1)   the contravention of implementation of the Jury act  especially s. 21 and s. 67 of the Juries act in which s. 21 states Copies of panel to be made and s. 67 states willful offence by persons under this act 1991

(2)   the effect of this contravention to the judgment of the appellant in which all judges (Unanimous) agree the breach of this jury act.


How the potential jurors can be challenged: by peremptory challenges (s.34) and  challenges for cause (s.38).

  1. the legislature discusses that the Crown in unmistakable language aright of peremptory challenge.
  2. there is no reason to treat the Crown’s right in that regard as being any different from the right of peremptory challenge enjoyed by accused person .
  3. compliance with the guidelines formulated by a Director of Public Prosecutions of the kind promulgated to prosecutors.

These challenges have to done in order to see the relationship between the Crown and the defendant in terms of implementing peremptory challenges (s.34) and challenges for cause (s.38).


The Law of Torts

  1.                                 i.            Donoghue V Stevenson [1932] AC 562 case is important in the development of the common law tort because:

(a)        This case was the most famous tort cases that created a lot of tort principle particularly the neighboring principle.

(b)       It affirmed the separate existence of the tort negligence on the basis of the duty of care in negligence.

(c)        The decision in this caseasserts that aduty of care might exist between parties who are unknown to one another and are not the subject of any pre-existing legal relationship.

  1.                               ii.            Lord Atkin described the duty of care in this case as at present I content myself with pointing out that English law there must be some general conception of relations giving rise a duty of care. The liability for negligence, whether your style it as such or treat as in other system as species of culpa, is no doubt based on ageneral public sentiment of wrong doing for which the offender must pay. However, acts or omissions, which any moral code would censure, cannot in a practical world be treated to give a right to every person injured by them to demand relief. This way rules of law arise which limit range of complainants and the extent of their remedy.

The duty of care is owed to the Plaintiff because the defendant appreciates the risk of injury or damage. It can be seen in some circumstances:

  1. Physical injury, it can be seen directly trough the injury or damage
  2. Economic loss, it can be seen trough unphysical injury but it causes economic loss to the plaintiff

The Law of Trusts

(a)    A trust in the Common Law system: (extract from Vermesch & Lindgren, 2003:1068-1078)

v  The role of the settler,

Settler is person who provides the property the subject of the trust.

v  The role of the trustee,

Trustee is the legal owner of the property. It can be individual, company or anyone who is capable to hold the property because there is no restriction on who can be appointed a trustee. In addition, a trustee is appointed by settler or by the exercise of a power of appointment or by statute.

v  The right of the beneficiary,

Basically, beneficiary has an equitable in the property because the trust is no regarded as a separate entity.

v  The trustee’s duty towards the beneficiary,

The general duty of a trustee is to act in good faith on behalf a trust ( ut most good faith ubberrimae fidei). However, there are other obligation:

  1. ascertaining what property is the subject of the trust.
  2. adhering to the terms of the trust.
  3. carrying out all duties personally as a fiduciary to act in a good faith.
  4. preserving a good property including insuring trust property and inversting properly.
  5. keeping accounts and supplying information to beneficiary.

v  The concept of dual ownership of the trust property mean the settler acts on behalf of the beneficiary until it is allowed to have its own property. In this light, the executor or solicitor is the legal ownership of the property, while beneficiry has an equitable ownership.


(b)   The creation of express trusts are expressed into three certainties:

  1. certainty of intention,

In this light, to create a valid trust no consideration is necessary as long as the intention is clear.

  1. certainty of subject matter,

In this light, it refers to the property of the trust and it must be described with sufficient certainty for the trust to exist.

  1. certainty of object/beneficiary,

In this light, it refers to legal individual. It means that it have to be in list certainty. However, there is a reduced requirement for it for charitable trust. Generally, the beneficiary can enforce a trust, but the Attorney-General enforce charitable trusts.

(c)    Express trusts can be set up into two ways:

  1. They are set up by deed (in formal writing) that shows an intention to create a trust (inter vivos trust).
  2. They are set up by will that  created by testamentary trusts.






Maskun S.H. L.L.M

Lahir di Abeli (Kendari) pada tanggal 29 Nopember 1976. Menyelesaikan S1 pada Fakultas Hukum UNHAS tahun 1998, S2 pada university of New South Wales (UNSW) Sydney, Australia tahun 2004 Selain Mengajar, penulis aktif menulis pada beberapa jurnal ilmiah dan surat kabar lokal serta melakukan penelitian baik itu yang dibiayai oleh Lembaga Penelitian UNHAS, Badan perencanaan Pembangunan Daerah Kota Makassar, maupun yang dibiayai oleh institusi lain seperti Institut Pertanian Bogor (2007) dan Pusat Studi Hukum dan Kebijkan Jakarta (2009). Penulis juga terlibat aktif mengikuti beberapa seminar, simposium, kursus singkat, dan workshop yang dilaksanakan dalam dan luar negeri seperti kursus singkat di Jepang (2006 dan 2008), APEC Worksop di Jakarta (2009). Hal lain yang dilakukan penulis di sela-sela kegiatan sebagaimana telah disebutkan, penulis aktif menjadi pembicara pada berbagai forum ilmiah termasuk didalamnya ketiga penulis menjadi Pembicara pada seminar Internasional via teleconference yang dilaksanakan oleh Asean law Students Association (ALSA) UNHAS, Chuo University Jepang dan Chulalakorn University Thailand tahun 2009 dan 2010. Beberapa karya ilmiah dalam bentuk Buku/buku ajar/diktat adalah Hukum Internasional (2008), Filsafat Hukum (2009) Filsafat Hukum (dari rekonstruksi sabda manusia dan pengetahuan hingga keadilan dan kebenaran) – (2010), dan Pengatar Cyber Crime (2011). Editor pada Buku Karangan Prof. A.M. Yunus Wahid (2011).

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