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Australian Law Assessment

What is the purpose of the Evidence Act (Clth) 1995?

The Evidence Act 1995 (NSW) was established as a part of the national uniform regime that were created through reforms in the early and mid 1990s. The aim of the reforms aimed at creating a consistent way of treating evidence in courts in all the states as well as in the federal level of jurisdiction. According to the NSW legislation, the purpose of the act is to develop a fresh provision of the evidence law that is uniform with both the federal law and the law of New South Wales. Therefore, it was intended to develop a process of treating evidence by courts consistent to the federal method as well as other state methods established under state statutes such as Evidence Act 1995 (Cth) and Evidence Act (Tas).
What is the purpose of part 2.2 of the Evidence Act (Clth), 1995?

Primarily, Part 2.2 of the Act concerns the process of adducing documentary evidence in the NSW state courts. Section 47 in part 2.2 of the Act defines the term document in question as reference to any document whose contents is sought to adduce evidence in a court of law. In addition, the sub-section defines “copy of a document” as document that is “not” the “exact” copy of the original document presented as evidence in the court. In addition, part 2.2 deals with other issues relating to documented evidence, including a standard way of proofing for contents of documents presented as evidence in court (s.48) and documents in foreign nations (s.49). Moreover, it abolishes the previous rules and principles that were established under the common law, which were concerned with the means of providing the contents of documents presented as evidence in courts of law (s.51).

How and where is the word “document” defined under Evidence Act 1995?

As stated in question 1.2 above, Section47 under part 2.2 of the Act defines the term document in question as reference to any document whose contents is sought to adduce evidence in a court of law. In addition, the sub-section defines “copy of a document” as document that is “not” the “exact” copy of the original document presented as evidence in the court of law in the state.

What do Sections s.47 to section s.51 of the evidence Act 1995 provide?

Section 47 of the Act: Provides for a standard way of defining the terms “document in question” and “copy of document in question”. The term “document in question” is used in reference to a document whose contents are sought to adduce evidence in court. The term “a copy of a document in question” is used in reference to a document that is “not” an exact copy of the “document in question” but is identical to it in all other relevant features.
Section 48: provides a standard way of proof for contents of a document. It provides the legal methods through which a part may adduce evidence within a document presented as evidence. These methods include tendering and adducing of an admission by another party to the case in regards to the contents of that particular document in question.

Section 49: provides standard way of dealing with documents in foreign nations, in which it states that any paragraph of subsection 48(1), apart from 48(1) (a), shall apply to documents in a foreign nation unless under the direction of the court. In addition, it may apply when the part making the adduction of the document not less than 28 days prior to the day of adducing the evidence.
Section 50: It provides a standard way of proofing for complex or voluminous documents presented as evidence, in which it requires the parties wishing to adduce evidence from the document to make summaries of the contents therein

Section 51: Abolishes the document rules by abolishing the previous rules and principles that were established under the common law, which were concerned with the means of providing the contents of documents presented as evidence in courts of law

What is the corresponding Victorian Act?
Evidence Act 2008

(a). how is a document defined in the Evidence Act 2008 (vic)?
Under the Evidence Act 2008 of Victoria, section 1 of the act provides that all definitions in the Act are provided at the dictionary at the end of the Act, and that the dictionary is part of the act. As such, the term “document” in the dictionary is defined as any record of information that includes anything on which writings have been made or on which there are figures, symbols, perforations or marks with a meaning for people with qualifications of making interpretations of them. In addition, it includes such things as maps, photographs and drawings as well as anything with images, sounds or writings that can be reproduced using (or not using) the aid of anything else. The definitions are also given under section 47 of the Act in the same way they appear under section 47 of the Evidence Act 1995 of NSW.

(b). What sections of the act correspond with sections 47-51 of the Commonwealth Act?
The sections 47-51 of Evidence Act 1995 of NSW appear in correspondence with sections 47 to 51 of the Evidence Act 2008 of Victoria and in the same manner.

1.6 What differentiates a document that has a legal nature from the one that does not? Give two examples of each

A document with a legal nature is that document with contents intended to create a legal relationship. For example, a document specifying a contract on a loan or contract for sale of land is a document with a legal nature. On the other hand, a document that has a non-legal nature is those documents that does not intend to create a legal relationship and includes a document with instructions on how to carry construct a building or a document with instruction on how to undertake a laboratory procedure.

2.1 (a) an express term of contract: An example is a contract document specifying how a person is to purchase a motor bike with 120 km/hr, a capacity of 1000cc and a mileage of 20miles. Since an express condition is that which has clear definitions stated and defined, then the specifications of the engine capacity, speed and range makes the condition express rather than implied

(b) Implied contract: An example of an implied contract is a contract to purchase the above vehicle, but in which the conditions are not defined and stated, rather the document states, “the engine should be new and working”. Such a contract is implied because the condition therein is a legal presumption based on the contents of that document, where specific details are missing.

(c). A term implied by a relevant piece of consumer legislation in your state: An example is a consumer legislation that requires traders to provide the relevant details of an object being offered for sale such as height, width and length of a container in which cement is placed. This does not include the weight of the cement therein.

(d). A condition precedent: An example is a document stating “James will obtain a 3-acre piece of land after he reaches 18 years of age”. This statement is a condition precedent because it refers to a state that is required to be done or fulfilled before something else takes place. The event or condition that must occur in this case is “to reach 18 years of age” in order for the other event “to obtain the piece of land” to occur. This means that if James does not reach 18 years (he may die prior to that), then he is not entitled to obtain the property. It is not stated that James will necessarily reach 18 years of age.

(e). Condition subsequent: An example is a document with specifications “When water runs out, the plants will die”. This is a condition subsequent because it refers to an event that must occur to end another condition. In this case, unless water runs out, the plants will continue to live, else they will die.

(f). Guarantee: An example of a guarantee is an agreement signed by John stating that he will be responsible for Dave’s performance in milking Hillary’s cows in her farm. In this case, the signee is not Dave but John, yet Dave is the party that must perform the action on behalf of Hillary. It is guaranteed that if Dave fails to perform as expect in the farm, then John will be directly answerable.
(g). Warrantee: An example is Hillary because she has been given a warrant that her car has a general coverage the covers failures and problems that could cause it to stop working, which is provided for three years.

(h). The difference between representation and a Term: A representation is a statement that is not part or does not amount to a part of a contract. For example, an oral statement made by Morris that “ in future, I will consider buying a car from you” does not make part of a contract because Morris did not promise or commit himself to buy the car. On the other hand, a term is a statement, condition or warranty that makes part of a contract. For instance, if Morris says that “tomorrow at 5:00 pm I will pass here to make payment worth $5,000 on that white car” is a statement that has a condition of time, amount and quality/make of the item. Thus, it amounts to a part of the contract.

2.2: Why do we have rules of construction and interpretation with respect to contracts?

The application rule of construction and interpretation of legal documents is imperative in representing the meaning of a document in legal cases. It is worth noting that a legal document is written in form of a representation of an agreement, in which it is to be assessed to derive the meaning and thus, the obligations, responsibilities, rights or duties that are created by the contents of the document. Courts in Australia are likely to apply a number of construction and interpretation rules in deriving meaning from a document. Such rules include
“The document is to be read as a whole”, which means that the overall contents of the document are to be assessed and understood in order to derive the legal meaning.
“The words of the document are to be given their natural/ordinary meaning” meaning that the intention of the involved parties is to be understood from the ordinary terms or words within the document rather from extrinsic clauses or sources therein.

The parole evidence rule implies that evident is not to be given other elements that tend to contradict or add to the written terms and conditions of the document.
In case of disputes, relating to the meaning of the language of the entire of part of the document, then the document will be constructed against the party pr parties that was/were responsible for choosing the language to be used in reading and interpreting the document.
In case of ambiguity in the intention or words therein, then the rule is that the interpretation of the document must lean towards the meanings that are more reasonable in totality of the circumstances.

3.1 What scopes are there in a standard pro-forma contract of sale of real estate for Vendors practitioner to modify the document to meet his/her client’s specific instructions and the particular requirement of the proposed sale?

During the sale of properties such as real estate and land, the vendor must amend the documents where necessary, with the consent of the other party, some contents of the document within the scope of a number of areas. For instance, the contract of sale should be amended in order for the client to be shown as the rightful purchaser, with his/her name as Dave Morris. Secondly, the contract of sale may be changed in order to show the client as the purchaser with the names of Dave Morris, but where loan documents from the bank shows that the person who borrowed the money is David John Morris.
3.2 The URL for the Land Registry in my state (NSW) is http://www.lpi.nsw.gov.au/land_titles
3.3. five of the most common documents in the conveyance transaction downloadable at http://www.lpi.nsw.gov.au/land_titles include:

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Category: Sample Questions