Mooting

Mooting, what does it mean?

It is derived from a Scandinavian word simply meaning 'meeting' or the assembly of people.

It came known went the vikings went to the UK and where legal debates ensued, it would be termed as mooting.

Now, mooting is known as a 'mock court' trial, like how lawyers present their arguments before Judges appealing a decision made the courts.

Why I wrote this?

Simply because I'm on a mini-high after joining my first mooting competition thanks to encouragement to participate and moot with Juin (the Tasmania Uni Law Society International Student Officer) Such a long title. lol.


I'm on such a high I'll just put down everything I said and what feedback I had.

Read at your own risk. This is legal jargon.

Before I enter that the legal eagle stuff, for my own self note, the feedback I got from the Judges was that I :
- Spoke clearly
- Was composed
- Remained calm
- (I like this) stuck to my guns. [the judge repeated asked me regarding a misrepresentation issue but I held to my argument and reiterated my point eventhough she tried to make me unsure about what I was arguing)
-Am a good arguer. lol. I checked what arguer means and wiki said, ' one who argues '.
-Answered questions well
- had to make clear my points and separate them out so I won't confuse myself ( kinda mixed up misrepresentation and implied terms)
- have to structure my points better
- speak not to 'rebut' the trial judge like a debate but to say that the judges 'erred', 'made a mistake' or was incorrect.
- Don't say I would like to submit, say I submit. [ our generation like to use the word 'like' lol]

Pretty much all. They say we should enjoy our faculty moots. I hope so it's 70% of my Constitutional Law assessment!

All in all it was serious heart pumping, gut wrenching, fist clenching fun. Should do it. Akin to a roller coaster. Live the life! lol.

That's it with what people call my 'verbal diarrhea'.

Here's my submission if you care to read. But don't bother unless you're interested in mooting.

This is regarding an illegality contract case and I was the counsel for the appellant.

Question:

University of Tasmania Internal Competitions 2009
Moot Question- Senior

Parties: Beau Brady and Brad Bridges v Rogue Star
Facts:
Beau and Brad have been together for 7 years and were desperate to have a child to make their life complete. They placed an advertisement in the Burnie Bugle that said:

Wanted: Surrogate
Must be resident in Burnie
Will pay $50,000 for services plus all reasonable expenses

Rogue was desperate for money, having just lost her job, and responded to the advertisement. She was the only person who lives in Burnie who did respond. Although Beau and Brad were worried about her motives, they agreed to proceed with the surrogacy. On 1 March 2009, all three attended the Burnie IVF clinic and Rogue underwent a procedure where she was inseminated with sperm donated by Brad. Unfortunately, the procedure was performed by a graduate student who failed to first check Rogue’s fertility status and whether Rogue was actually able to carry a baby. As it turned out, Rogue had cervical cancer in her late teens and had been told that she is infertile.

After the procedure was completed, Beau and Brad paid Rogue the $50,000 and went home to excitedly wait the pregnancy check-up in a month’s time. On 1 April 2009, Beau and Brad attended the Burnie IVF clinic with Rogue, only to find out that not only was she not pregnant, but that she will never be able to have children.

Distraught, Beau and Brad asked Rogue for their money back. Rogue refused and Beau and Brad commenced proceedings in the Supreme Court of Tasmania seeking to recover their $50,000 on the grounds of breach of contract.
At trial, the judge found in Rogue’s favour.

First, the trial judge found that Rogue did not misrepresent her capacity to have children and that it was not a term of the contract that Rogue warranted her capacity to have children.

Secondly, the trial judge found that even if she was wrong and the contract was induced by a misrepresentation or it was a term of the contract that Rogue warranted she could have children, the contract was void and unenforceable under s.7 Surrogacy Contracts Act 1993 (Tas).

Accordingly, as property in the $50,000 passed on delivery of the money to Rogue, Beau and Brad have no rights to recover the money.

Beau and Brad have appealed the decision.


My submission.

Submissions For Apellants (Beau and Brad)


Your Honour, with your permission, I Jason Lee, the counsel for the appellant, appealing for our client, Beau and Brad to bring justice to this matter, clarifying the vague facts to prove that my clients have the right to recover the $50,000 on the grounds of breach of contract.

Your Honour,
I will would like to highlight these three points as held by the trial judge,
1. That the trial judge’s finding that Rogue did not misrepresent her capacity to have children can be rebutted.
2. The trial judge’s finding that it was not a term of the contract that Rogue warranted her capacity to have children may be rebutted.
3. The trial judge’s finding that the contract was void and unenforceable under s.7 Surrogacy Contracts Act 1993 (Tas) is accepted but Beau and Brad should have the right to recover their money.

SPEAK SLOWLY and CLEARLY

I submit the first point that
1. The trial judge’s finding that Rogue did not misrepresent her capacity to have children can be rebutted.
According to Derry v Peek, it was held by the court that it was necessary
- Derry v Peek: In an action for deceit, it was necessary to prove fraud by showing that the defendant made a false representation knowing it was untrue or without belief in its truth, or recklessly, carelessly whether it was true or false (in its actions). This was not established on the evidence in this case, since the directors honestly believed that what they asserted was true.

On the facts, Rogue was actually expressing her ability to become pregnant when she responded to the advertisement by Brad and Beau. It is akin to the unilateral offer and acceptance (Carbolic Smoke Ball case). The acceptance by Rogue constitutes a representation that she can become pregnant and it is a false representation which Rogue made knowing it was untrue or that was made recklessly, since she was desperate for cash. She had also lost her job then and would have made a decision that was careless and reckless

Therefore your, Honour I submit that Rogue did misrepresent her capacity to have children because at that time she responded to the advertisement she was desperate for cash and lost her job causing her decision to be reckless and careless.

SPEAK SLOWLY and CLEARLY

To move on the second point Your Honour:
2. The trial judge’s finding that it was not a term of the contract that Rogue warranted her capacity to have children may be rebutted as well.

It is actually in the terms of the contact that Rogue warranted her capacity to have children may be rebutted as well. By the fact that Rouge agreed to be a surrogate mother, in means she has the capacity to have children and the fact that Beau and Brad did not received what they have paid for, they have the right recover their losses.

To bring forth a case in point Your Honour,
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266;
In the words of Lord Simon,
‘In the light of an associated agreement, it was something so obvious that it went without saying and if a bystander had asked whether that was the common intention of the parties the answer would have been “of course”. ‘

In this case, it is so obvious that the common intention of Beau and Brad in putting up the advertisement of a surrogate mother is to have a child. Therefore, Rouge must be able to become pregnant for the contract to be working. The fact that Rouge’s failure to become pregnant gives reason for them recover the $50,000.

In addition Your Honour, according to
Baltic Shipping Company v Dillon (1993) 176 CLR 344,
Mrs. Dillon could not recover the whole of the cruise fare on the ground of total failure of consideration, since she had enjoyed the benefits of the first eight full days of the cruise The court upheld an award of $5000 damages for disappointment and distress flowing from breach of the contract, since the object of the contract was to provide enjoyment and relaxation.

In this situation, the object of this particular contract was for Rouge to be a surrogate mother. Beau and Brad did not ‘enjoyed the benefits’ from Rouge’s offer to be a surroagate mother. The fact that in the end she did not fulfill the contract term to be a surrogate morther would give reason for Beau and Brad to cover the $50,000 that was paid in exchange for Rouge to be a surrogate mother.

SPEAK SLOWLY and CLEARLY

To my third and final point your honour,
3. The trial judge’s finding that the contract was void and unenforceable under s.7 Surrogacy Contracts Act 1993 (Tas) is accepted but Beau and Brad should have right to recover the money.

SURROGACY CONTRACTS ACT 1993 - SECT 7
7. Effect of surrogacy contract
A surrogacy contract is void and unenforceable wherever the contract is made and whatever law may be the proper law of the contract.
However, I submit that even if the contract was deemed void and unenforceable, Beau and Brad should be able to recover the $50,000.

Your Honour, in the case of Hatcher v White in the words of Street CJ
Street CJ in Hatcher v White (1953) 53 SR (NSW) 285, 288-289
‘…for in my view there emerges clearly the general principle that a claim may be made in fraud by an innocent person who is induced by untrue misrepresentations made by the other party that the agreement could lawfully be entered into, if it was not on its face one which was obviously unlawful. If, assuming the statement of facts to have been true, the transaction would have been legal, then the party defrauded is entitled to recover damages for any injury which he may have sustained by innocently entering into an illegal contract.’


Beau and Brad were induced by induced by untrue misrepresentation, placing themselves in a position, innocently on their part, and should be entitle to recover their losses. It would be unfair for Rouge to benefit from the ill-gotten gains at the expense of Beau and Brad.


SPEAK SLOWLY and CLEARLY


I would like to submit therefore your Honour that,
1. The trial judge’s finding that Rogue did not misrepresent her capacity to have children can be rebutted.
2. The trial judge’s finding that it was not a term of the contract that Rogue warranted her capacity to have children may be rebutted.
3. The trial judge’s finding that the contract was void and unenforceable under s.7 Surrogacy Contracts Act 1993 (Tas) is accepted but Beau and Brad should have the right to recover their money.

Your Honour, I shall conclude my submission on behalf of the appellant unless I can be of further assistance to your Honour.


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