Comparison Of Legal Systems: India And Australia - An Essay.

Research a legal system of a foreign country and explain how it addresses the following requirements of a legal system: -

- rules of recognition

- rules of change

- rules of adjudication.

Then explain how the Australian legal system addresses the same requirements. For the

Australian legal system, you will have to refer to the rules for recognition and change of both

statute law and common law. Your answer should include full referencing using footnotes,Your client, Sandra May, purchased an Internet/phone package from her Internet service provider, jjNet. The online brochure had said that it provided Internet speeds of “up to 100

Megabits per second” and 10GB of data per month. It also included an Internet modem and a mobile phone with unlimited local calls. Sandra took up the offer and accepted a contract which stated that if she paid the package fee of $59.99 per month for 12 months, she could keep the phone and the modem.

Now that Sandra has been using the package for 3 months, she has found a number of problems. The only time she gets Internet download speeds approaching 100 Megabits per second is in the early hours of the morning at around 2am. She also finds that as her data usage approaches 10 GB in a month, the speed slows down dramatically to the point where the Internet is almost unusable. If she then buys an add-on package of extra data, the connection immediately speeds up to about 100 MB/s.

She has also had a lot of trouble with the phone. When she received it, it did not look new as it was worn in certain areas. The keys keep getting stuck so it is difficult to type text messages, and the battery seems to die after only a few hours use. jjNet refuses to replace it.She wants an advice on her possible legal actions. Your supervising partner asks you to

prepare a report to him setting out your research, legal reasoning, and recommendations. The report should include full referencing using footnotes, NOT a reference list or bibliography.

Rules and Sources of Laws in India and Australia

The three-part legal system was developed by Herbert Lionel Adolphus Hart who provided that there are primary and secondary rules which forms a legal system of a country. This paper will evaluate the legal system of India based on the three-part legal system of HLA Hart. Furthermore, this rule will be implemented on the legal system of Australia to understand how the country complies with these provisions. The Indian legal system is influenced by the legal system of the United Kingdom which incorporates both primary and secondary rules. 

The country is governed by a Constitution which has separated the powers between executive and judiciary authorities. The Constitution of the country was established in 1950, and it has been amended 101 times by the government. The rights and authorities of lawmaking are given by the Constitution to the Parliament. Based on these rights, the parliament can form new laws and amend the current regulations in the country. The key sources of laws in the country include the constitution, case laws, customary laws, and legislation.

The Government of India has given the power to propose new laws in the parliament which are focused on bridging the gap in the legal system of the country. After the proposal of these laws, the ministers who are appointed by the public in the parliament discuss such proposed law (bill) to decide with a majority whether they should accept them or not.

The laws are made by two main parliamentary bodies in the country which include Rajya Sabha and Lok Sabha. The process of lawmaking in the country is clearly highlighted by the constitution which provides that the government proposes a bill which is then discussed by both Rajya Sabha and Lok Sabha to determine whether it should be a law or not. After the bill is accepted in both of these parliamentary houses, it is sent to the President of the country. The bill becomes a law and applies throughout the country after the signature of the President. The laws which comply by everyone are included in the Constitution and other legislation of the country.

The punishments for non-compliance with these provisions are also provided in the laws. The judiciary power is divided into different courts in the country by the Constitution under which there are separate courts for entertaining civil and criminal matters. The highest judiciary entity in the country is the Supreme Court which has the power of judicial review as given by article 32 of the Constitution. This also allows the Supreme Court to check the actions of the government as well. The judgements of the higher courts are applied on the small courts, and they are bound by those judgements. The principles given HLA Hart in the three-part legal system apply to the legal system of India.

The rules of recognition principle provided the key fundamental policies which are necessary to comply by both private and governmental authorities. In the case of Indian legal system, the primary rules which apply on all citizens and governmental authorities are clearly defined in the Constitution and other legislation which also highlight key rights and liabilities of parties as well. These are primary rules which apply to everyone, and the process of creating these laws are defined in the Constitution of the company as well.

Compliance with Hart's Three-Part Legal System in India and Australia

The rules of change provided that the process of making changes in the law must be clearly defined in the legal system. In the case of the Indian legal system, the provisions are clearly mentioned regarding how to add, remove, amend or change the regulations in the country. Moreover, proper authority is given to the Supreme Court to oversee the operations of the government which assist in avoiding misuse of powers. The rule of adjudication provides that the provision regarding adjudication must be clearly established in a country.

It is the case with the Indian legal system in which different courts are established for different civil and criminal cases, and the judgement of higher courts are binding on lower courts. Parties also have the right to make an appeal in the higher court against the decision of a lower court. Based on these principles, it can be stated that the Indian legal system complies with the provisions given under Hart’s three-part legal system.

In the case of Australia, the provisions of Hart’s three-part legal system apply as well. There are many similarities in the Australian and Indian legal system since both of them are heavily influenced by the English legal system. In Australia, the government is given the right to proper the law in the parliament which is accepted after arguments regarding whether it should be a law or not. The rules of changes are included in the Australian legal system since the procedure for changing, amending, deleting and adding new laws is clearly mentioned in the court.

 The rule of adjudication applies in the country as well because separate courts are established for separate civil and criminal cases. The decision of higher courts is enforces on lower courts as well. The rule of recognition also applies in Australia in which the primary laws which apply to everyone in the country are mentioned not only in statutes but also in common law as well. The statutes are the laws which are implemented by the government, whereas, the common law principles are derived from custom and judicial precedent rather than statutes. Both of these principles apply to the parties and govern their actions which show that the Australian legal system complies with the three-part legal system developed by HLA Hart

Issue

Whether any legal actions can be taken by Sandra against jjNet for misleading advertisement and whether she is bound by the terms of the contract

Rule

When two or more parties enter into a legal contract, they have the right to enforce its terms on each other. Certain elements are necessary to be fulfilled in order to ensure that a valid contract can be formed between parties. Based on fulfilling these terms, the parties enter into a legal relationship in which they can enforce each other to comply with the contractual terms. However, a contract which is formed on misrepresentation is not considered as valid. If a party of the contract relied on a false statement of fact or law in order to induce another party to form a contractual relationship, then it is considered as misrepresentation. The parties who make a false claim regarding their products or services during advertisement are referred as false and misleading advertising. 

Legal Action against JJNet for Misleading Advertisement in a Contract

The objective of misleading advertisement is to induce the customers to purchase products or services of a company. The rights of customers are violated by the parties if they make false claims regarding their products or services. In Australia, the government has implemented the Competition and Consumer Act 2010 (Cth) which is focused on protecting the rights of customers. This act also provides various provisions regarding protecting the customers from misleading or false claims which are made by a corporation in order to induce the customers into signing a misleading claim.

Section 18 of the Act provides that corporations which made a claim regarding their products or services which are misleading or deceptive or which are likely to mislead or deceive customers is considered as prohibited. In the case of advertisement, section 29 of the act provides key provisions for protection of customers. This section provides that a party must avoid making misleading or deceptive claims regarding its products or services while advertising. It should also avoid making any claims which are likely to mislead its customers to protect the customers.

The court has provided judgement in several cases in which it was held that the parties should avoid making misleading claims regarding their products or services during advertisements. A good example is ACCC v TPG Internet Pty Ltd case in which the court provided that the company has issued a misleading advertisement to induce its customers. In this case, the Australian Competition and Consumer Commission (ACCC) alleged TPG of contravening the provisions of the Trade Practices Act 1974 (Cth) which has now amended into the Competition and Consumer Act 2010 (Cth) or Australian Consumer Law.

In this case, the company made misleading advertising regarding the prices of ADSL2+ unlimited broadband. The company provided that the customers can purchase the product for a cost of $29.99 a month. The company included in a small print that this price is bundled with a home line rental which will cost customers $30 per month. A suit was filed by the ACCC against the company alleging it for violating consumer protection policies.

The High Court provided in its judgement that the advertisement posted by the company is considered as misleading and deceptive which is posted in order to induce the customers into signing a contract with the company. The court ordered the company to remove its advertisement and imposed a penalty on the company. The court provided that the customers who have entered into a contract with the company based on the advertisement can set aside such contact because it is considered as void based on misrepresentation made by the corporation. The parties are not bound by the contractual terms of such advertisement, and they can demand remedies from the parties. The remedies available for the customers in this scenario include rescission, specific performance, injunction, repudiation, and damages

Application

In the given case study, Sandra May purchased an Internet/phone packages after seeing an advertisement from her internet service provider. In the advertisement, it was mentioned that customers could pay $59.99 per month to get internet speed of ‘100 Megabits per second’ and they will receive 10GB data per month. The online brochure of the company provided that the internet modem and a mobile phone are included in this package from which customers can make unlimited calls. After three months, Sandra realised that the internet speed of 100 Megabits only available in the early hours of the morning and the speed decreases as she approaches close to 10GB data limited.

The phone also causes many problems because it was not in a new condition and its keys and battery were damages as well. As per the judgement of ACCC v TPG Internet Pty Ltd case, this is considered a misleading advertisement which is posted by the company to induce its customers. This advertisement violated section 29 of the Australian Consumer Law based on which Sandra has the right to set it aside. She is not bound by the terms of the contract, and she has the right to claim remedies from jjNet for the false advertisement made by them. The internet provider is liable to pay damages to its customers who signed a contract with the company based on false and misleading advertisement.

Conclusion

To conclude, Sandra has the right to make a claim against jjNet for misleading advertisement based on which she can set aside the contact formed with the company. She can claim damages from jjNet for the problems which she faced due to the misleading advertisement.