Why Some Judges Are Still Living In The Stone Ages
Why Some Judges Are Still Living In The Stone Ages
Abstract: The recent decision of the Southport District Court, in the case of Petal v Drongo, was made against relevant legislation that is very clear in its meaning. It seems that two of the three judges took a subjective view of this case, and have taken it upon themselves to make their own law in regards to the statutes involved in this case. Gerard Snowdome, Senior Partner from Biggles, Farnsworth and Snowdome, argues that the decision in this case completely undermines the legislation involved and that the judges have made their own law in making their decision.
The courts have always held that for a contract to be legally binding, there must be the requisite of offer and acceptance, in writing and signed by both of the intending parties. It has also been held that if the offeror wishes to withdraw their offer, the revocation must be received by the offeree, before they have accepted the offer . The term “received” must not be confused with the word “communicated”, because although the offeror may have “communicated” their withdrawal of the offer to the offeree, the revocation is null and void unless it has actually been “received” by the offeree, before they have accepted the offer . Also, should the offeree ask the offeror a mere question in regards to acceptance of the offer, the offeror should not perceive this to be a counter-offer on the part of the offeree.
In the case of Petal v Drongo, the court followed precedents in the details mentioned above and ruled in favour of the Plaintiff (our client). However, the court ruled that a contract was not established in this case, because the communication between the parties was done via Facebook messages and text messages, and the court found this to be light hearted , idiotic and that this form of communication does not form a valid “written” contract. However, I will now demonstrate in this document why this finding of the court is wrong and why their decision is in fact idiotic , and that they are living in the past.
The Electronics Transactions Act 2001 (Qld) clearly states that a contract can be “in writing” across various electronic documents and the typed names of the intending parties is enough to constitute a signature. We live in a modern society where the majority of communication is done electronically and as a result, the Electronics Transactions Act 2001 (Qld) was created to validate contracts being made this way. The Minister’s Second Reading Speech of
the Electronic Transactions Bill states that “The bill is designed to ensure that a transaction is not invalid simply because it is affected by means of an electronic form of communication .” The Minister continues by saying: “The bill also provides that a requirement or permission under a law of Queensland for a person to provide information in writing, to sign a document, to produce a document, to record information or to retain a document can be satisfied by electronic communication.”
It is evident and blatantly clear that from the Minister’s Second Reading Speech that the communication between the parties created a binding contract electronically, as it was in writing and contained typed names to constitute a signature. Potential Fraud or Impermanence when selling land: The other issue that the court contended was s 59 of the Property Law Act. This statute was created to avoid fraud and impermanence when a transaction is completed in the sale of land. It is quite simple and obvious that the transaction between the parties was permanent in this case, through the written electronic documents, which have created permanent records of their agreement. And the documents were admittingly written by the defendant,
so how does fraud even come into play in this scenario? The only possible answer is that the court has turned a simple case into a complicated one, which is unnecessary and idiotic .
Unintended Consequences and Conclusion:
It is apparent that the judges residing on this case have completely undermined the above-mentioned statutes and have not looked at the objective tests at all. They have taken it upon themselves to create law which is not needed in this case. We do not live in the stone ages anymore, we live in a modern society where the majority of communication is done electronically and it is accepted that a contract can be binding this way. The judgement in this case is utterly absurd and makes it acceptable for someone like the defendant in this case, to intend on entering a legally binding contract (which he knew he was doing by the content that was written in his communication), but do it electronically, so that they are not bound and can relieve themselves of their duty under the contract, which in turn, is deceptive for the plaintiff in this case .
Questionable intention and unintended consequences ?
Abstract: The decision of the Queensland Supreme Court in Petal v Drongo earlier this year seriously undermines the objective test in considering questions of intention in relation to facilitate the use of electronic transactions. Gerard Snowdome, Senior Partner from Biggles, Farnsworth and Snowdome argues that the case that the Court got it right in relation to decision about no revocation and counter-offer BUT wrong in relation to “writing ”.
Over the past years , people claim to form a contract within a certain parameters. Back in these days’ people decides to write down all the requirements, terms and conditions and decides to send them by fax, phone or other instantaneous communication or non-instantaneous communication. Therefore they barely had difficulty not receiving any additional information regarding the contract through whatever their way of communication was. However now days people found many ways in communicating to each other such as facebook, text messages and so on. This issue relates to Petal v Drongo case. This article will outline the wrong decision of Petal v Drongo case. The judges took on the issue relating to “writing” and rejected the main issue that between these two parties, whether there was a revocation and whether there was a counter-offer made by any two parties. Then looking at the intention of Petal, whether she had intention to revoke the contract or make a counter-offer Petal didn’t have any intention to revoke or make a counter-offer. If reasonable people looked at this case, they will find this judgment unfair and absurd .
Prior to the events of this case the plaintiff and defendant had sustained a plutonic friendship for 3 years after initially meeting through a dating agency. If they sustained a plutonic friendship would a reasonable people think that if they had to set legal parameters to bind each other? The court’s decision was in relation to the written document between the parties. However this prior to the document issue Drongo sued Petal in breach of contract. What this depicts is that Drongo assumed Petal revoking a contract in terms of absence of reply when Drongo asked some questions about buying the land.
Drone J discussed matter in relating to ‘signing’ and ‘in writing’ of the document. However the reason why Drongo sued Petal was to seek the breach of contract. As Windbag J discussed the questions relating to revocation and counter-offer, what would “light hearted emails” would constitute as? Reasonable people would argue that it is just a mere enquiry. As mere enquiry does not constitute offer or any form in relation to agreement, it cannot be part of the agreement. Discussing the purpose of the legislation regarding Electronic communications act, aims to remove any existing legal impediments to the use of electronic transactions. The bill is designed to ensure that a transaction is not invalid simply because it was effected by means of an electronic form of communication. Using purposive approach, has Petal is in breach of the contract?
Electronic Property Transactions: When traditional views meet modern practice
Abstract: In an increasingly electronic world, many of our clients’ business transactions are negotiated and concluded on the internet. Gerard Snowdome, Senior Partner from Biggles, Farnsworth and Snowdome explores the recent decision of the Queensland District Court in Petal v Drongo and highlights the ways in which the courts appear to be out of step with modern business practices and parliamentary efforts to legitimise online transactions. He sounds a cautionary tale for those who engage in property dealing using electronic communications.
Property transactions in the era of electronic communications
Those who practice in the area of property law will be well acquainted with the provisions of s 59 Property Law Act 1974 (Qld) (hereafter the PLA) requiring contracts for the sale of land to be in writing and signed by the party or parties to be charged. As Christensen et al make clear the requirement, which finds its origins in the Statute of Frauds 1677 (UK), is designed to ensure that those entering into property transactions not only give due consideration to the serious nature of the transaction but are, in the future able to rely upon the dealing free of any taint of fraud. The permanent record of the dealing, evidenced in writing, protects against those who unscrupulously deal with land in the current moment as well as future claims by a party seeking to avoid a transaction by raising some disingenuous allegation of fraud on the part of the other party.
The advent of electronic communications has presented special challenges to property lawyers and their clients. Increasingly we find that many, if not all negotiations and communications by our clients, in business related matters, even those involving the sanctified realm of property transactions occur through a variety of instant messages, emails and other electronic mediums. In enacting the Electronic Transactions Act 2001 (Qld) (hereafter the ETA), our state government sought fit to address these challenges by normalising electronic communications. Indeed, the then Attorney General noted that legislation went so far as to allow for existing requirements in law (such as the requirement for a contract to be in writing and signed by one or more parties) to be satisfied through online communications subject to minimum standards of reliability and reasonableness.
One would have expected that such a clear articulation of parliament’s intent in enacting legislation governing electronic communications would provide ample guidance to the judiciary when confronted with vexing cases involving exactly those sorts of matters. However, the recent decision in Petal v Drongo suggests that judges continue to preference traditional ways of doing business over the “vagaries of the electronic interweb”, a preference which, I submit, is not only contrary to the relevant legislative provisions but also sets a dangerous precedent for the business transactions of so many of our clients.
Overview of Petal v Drongo
The claim which formed the basis of the plaintiff’s case in Petal v Drongo is a relatively straightforward one. The plaintiff and defendant had had a short term romantic relationship before establishing a four year platonic friendship. During the latter part of 2011 the defendant invited the plaintiff to enter into a business transaction with him whereby he would transfer to the plaintiff a half share in a property he owned upon the plaintiff paying him half of the original purchase price. While the initial proposal was originally made orally, it was confirmed in writing, albeit via a private message facility on the social media site, Facebook. The plaintiff accepted the offer via both a bank deposit and an email, although at that time she was unaware that the defendant had sought to revoke his original offer via a telephone text message. Subsequently the defendant sought to renege on the transaction and the plaintiff commenced proceedings alleging a breach of contract.
The District Court of Queensland was required to consider three specific issues arising from the facts. For the purposes of this article two of those issues, as they relate to the revocation and extinguishment of the original offer are not relevant, although in both the Court unanimously found in the plaintiff’s favour. The significant issue however was whether the collection of emails, text messages and Facebook messages, read together, satisfied the requirements of s 59 of the PLA. In an ultimately surprising and puzzling decision, the majority held that they did not.
Traditional views in collision with modern world practices
An analysis of the Court’s reasoning indicates that neither of the two judges in the majority decision considered the interplay between the PLA and the ETA. While Windbag J did make reference to the ETA, His Honour dismissed any protection which might have been afforded to the plaintiff under that Act on the basis that property transactions carry a particular gravitas which was not sufficiently reflected in the means of electronic communications engaged in by the plaintiff and the defendant. Indeed, His Honour, made specific negative comment about the plaintiff’s communication methods as being far too casual to be worthy of protection under the ETA. This view was shared by Drone J who made specific mention of a “degree of formality in relation to contracts for the sale of land”.
Two aspects of the majority decision are worth noting. In the first instance, the reasoning fails to engage with the intentions of parliament expressed in s 3 of the ETA which specifically states that one of its purposes is to facilitate the use of electronic transactions in relation to business matters. Rather, both judges sought to rely upon a more traditional notion of how business transactions should be conducted, a legacy of a bygone era in which parties are expected to conduct their negotiations in a rarefied and serious manner, presumably reducing their agreement to a single document signed by each. Surprisingly, neither judge seemed, in their context of their reasoning to take account of the particular circumstances of this transaction – one between good friends rather than formal business acquaintances. While a serious transaction nonetheless, that circumstance alone would account for the less formal nature of the communications between the parties.
More importantly however, the majority decision fails to consider the way in which the communications between the plaintiff and the defendant might be read as fulfilling the true purpose of s 59 of the PLA. If, as has previously been noted, the purpose is to ensure a permanent record to counter either the prospect of fraud or future allegations of fraud, it is difficult to imagine why permanent written records in a variety of forms, none of which were denied by either party, do not meet that purpose. This was much more in keeping with the decision of Limb J who found that the positive protection afforded by s 59 was not available to the defendant in the absence of any allegation of fraud.
A cautionary tale
What ultimately must concern practitioners about the Court’s decision is the way in which, despite clear parliamentary intentions, judges continue to characterise certain transactions as being of such a nature that only strictly formal communications will suffice to give effect to the creation of an unenforceable contract. Until such time as the decision is overruled by subsequent decision, the flawed ratio in Petal v Drongo is a stark warning to all that property transactions may be struck down by the court where the nature of electronic communications suggests something less than the absolute formality of traditional business dealings. Our clients should be advised accordingly.