BUSINESS LAW Business Law

Business Law

Question One: Kuja Cattle Pty Ltd

This case relates to legal rights and remedies under Australian common law. Common law is the law developed by judges through the cumulative effect of judicial decisions, as distinct from the law contained in statutes or in statutory instruments. In this sense, the term includes the law developed in courts of equity, though in a narrower sense 'common law' and 'equity' are contrasted. The common law is the basis of the Australian legal system. It developed from the common law of England which, so far as it was locally applicable, was brought to each of the Australian colonies by English settlers and became the law of the territory for want of any other system of settled law (see Reception of English law; Cooper v Stuart (1889); State Government Insurance Commission v Trigwell (1979); Mabo (1992)). The English judges of the twelfth and thirteenth centuries laid the foundations of the common law by drawing on English custom, but it is characteristic of the common law that it develops to meet changing circumstances (Ziamou 2001, 123-127).

The making of changes in the common law has challenged the theory that judicial decisions merely declare the common law as it is and has been, but the High Court has never applied that theory so absolutely as to prevent a new departure when new circumstances or more accurate perceptions so require (see Law-making role). The law may be declared to be different from what it had been understood to be, but the Court does not admit an authority to overrule an earlier case prospectively, for that would alter existing rights and obligations and thereby go beyond judicial power.

The Court develops the common law by stating a new principle or restating an existing principle to govern the case in hand and future cases. Policy considerations play a part, taking account of a variety of factors: precedent, the justice and efficiency of existing rules, their conformity with underlying principle, the implications of change and the capacity of society to absorb change. In considering a change in the common law, the Court is conscious, as it stated in Trigwell, that it is 'neither a legislature nor alaw reform agency'. Changes are not made in the common law if they would fracture the skeleton of principle that gives the body of the common law its shape and internal consistency (Scalia 1989, 511-21).

Tort is a private or civil law offense, entailing compensation for the harm and damages recoverable in private law in favor of persons injured. A tort is a private or civil act that harms other people or their property. The harm may involve emotional distress, physical injury, invasion of privacy, or defamation. The injured party may sue the wrong doer to recover damages for loss or harm. A tort is not the result of a breach of contract which would be settled under contract law (Jennings, 2006, pp. 56). Torts are part of common ...