The paper "Albert River Ferry Case" is a good example of a law case study. The following cases and scenario are fictional, however, you should treat them as though they were genuine cases. To answer this question you should not go beyond what you have learnt about precedent in module 4 and the preceding modules. It is a fundamental rule of contract law that a party to a contract should have reasonable notice of the conditions of the contract before they enter it. These cases concern that issue. Case Study: “ Albert River Ferry case” Facts: In the case of Starbo v Worldwatcher Ltd (1999) VR 372, the Victorian Supreme Court decided that Mr Starbo was not bound by the terms and conditions of Worldwatcher Ltd when he downloaded Worldwatcher’ s software from the internet.
Mr Starbo had gone to Worldwatcher’ s home page on which there was a notice at the bottom of the page stating that software downloads were subject to Worldwatcher’ s licence agreement and there was a link to the licence agreement. The link for the download was above the link to the licence agreement. The court held that Mr Starbo was not bound by the licence agreement in the circumstances because the statement at the bottom of the page did not provide reasonable notice of the licence agreement terms before he downloaded the software.
Tiffany Tolmie, who lives in Brisbane, Queensland is being sued in the Queensland District Court by the software company Bigsound Ltd for using its software in breach of its licence agreement. Tiffany had downloaded the software from Bigsound’ s webpage. A notice at the top of the webpage stated that the use of the software was subject to the licence terms and conditions which could be accessed from a link at the bottom of the page.
Answer the following questions: Issue: Validity and enforceability of a contract for the purchase and sale of cotton entered into between willing buyers and sellers, both adult and experienced cotton farmers and buyers. (a) Which of the two precedents, Worldwatcher or the Albert River Ferry case is the most authoritative as far as the Queensland District Court is concerned and why? (b) In dot point form list the main elements of each of the precedents.
Remember the precedent should be expressed in general terms. (c) Are these two precedents necessarily in conflict? Explain. (d) By discussing the precedents in the context of the facts in Bigsound v Tolmie, give a reasoned conclusion as to what you think might be the outcome of that case. Question 1 (a) If we accept the hypothesis of Queensland District Court, that judges do indeed make law through their decisions, we need to look closely at the judges themselves to decide whether starbo and tolmie are capable of performing that function.
Someone must be trusted. But in their case judges reach very different decisions upon the same facts; there is no common agreement as to what the law is, and Worlwatcher argues that in this case the judge is not only applying the existing law, but he is making new law.
N. E. Simmonds, Central Issues in Jurisprudence, 2nd Edition, Sweet & Maxwell, (2002)
Michael Freeman, Lloyd's Introduction to Jusriprudence, Sweet & Maxwell, (2001)
J. W. Harris, Legal Philosophies, 2nd Edition, Butterworths, (2000)
J. G. Riddal, Jurisprudence, 2nd Edition, Butterworths, (2001)
Jeremy Waldron, The Law, Routledge Publishers, (2007)
W. Morrison, Jurisprudence - From the Greeks to Post-Modernism, Cavendish Publishing, (2007)
C. O. Boulder, Jurisprudence: Theory and Context Boulder, Westview Press, (2006)
Bernard. S. Jackson, Making Sense in Jurisprudence, (2006)
N. Duxbury, Patterns of American jurisprudence, Oxford, (2005)
H. L. A. Hart, The Concept of Law, 2nd Edition, (2004)
John Griffith, Judicial Politics Since 1920, A Chronicle, Blackwells, (2003)
Natural Law Theory: Contemporary Essays, Oxford: Clarendon Press, (2002)
Simon Lee, Judging Judges, Faber & Faber, (2003)